Regardless of how you come by the daily news, chances are you’ve heard of legal cases involving police officers who allegedly bent the rules, or broke the law when collecting evidence to support an arrest or conviction. Of course, this type of conduct makes for great television; however, in real life, it can result in innocent persons going to prison and a breakdown of trust of law enforcement.
Fortunately, most police departments around the nation play things by the book. As of late, there has been conversation surrounding unlawful seizures and the hot topic of incriminating oneself focuses on smartphones and whether an officer can force you to unlock your device.
While the short answer is no, police cannot make you unlock your smartphone; there are a few caveats.
(Please note: The following is not and should not be considered legal advice.)
When can law enforcement search my smartphone
If you are at any U.S. border, including international airports, know that U.S. Customs and Border Protection agents might ask to search your smartphone or other portable devices.
As far as U.S. law goes, courts have ruled in the past that suspects can be required to unlock their phones without violating the Fifth Amendment protection against self-incrimination. However, they do not have to give them their passcodes because they can be used against them maliciously.
Even though the U.S. Customs and Border Protection agency has an enormous amount of autonomy when it comes to seizing and searching your mobile device, other situations introduce a bit of murkiness, thanks to a variety of court decisions.
Different circumstances which allow law enforcement to search your phone include when an officer believes there is an imminent threat of you destroying evidence, you consent to search or are arrested.
Know that consent to search your device does not have to come directly from you, as a roommate, spouse, or partner can grant permission. And, if arrested, you do not have to provide your passcode. With a warrant, police can seize and search your smartphone.
What protections do you have?
You have rights when it comes to denying access to your personal data. The Fifth Amendment of the U.S. Constitution protects you against self-incrimination through testimony, which encompasses encryption keys and passwords.
While law enforcement cannot force you to unlock your digital device, judges and grand juries have ruled against the notion that giving up your password is self-incriminating. Thus, forcing the defendant to unlock his or her device.
What about facial recognition or fingerprint ID
Here is where the waters get even muddier. As courts continue to wade through arguments over the Fifth Amendment and login credentials, local and state governments are holding the Fifth Amendment does not apply to smartphone users who employ facial recognition or fingerprint ID.
The argument is that because your face and fingerprint are not ‘testimony’ your right to deny access to your personal data is not protected under the Fifth Amendment.
One case in the Minnesota Court of Appeals found that compelling the defendant to supply his fingerprint is “no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing.”
Although there are precedents for fingerprint ID, courts have yet to rule on whether facial recognition is likewise unprotected under the Fifth Amendment. Considering facial recognition is similar to fingerprint ID, experts believe you could be forced to use your face to unlock your mobile device without denying you your rights.
Hackers helping the government
As highlighted in a legal battle over unlocking a terrorist’s iPhone between Apple and the FBI back in 2016, the government proved it is capable of finding a way to obtain your personal information without your assistance.
After plenty of wrangling and Apple’s continued refusal to crack the iPhone of one of the San Bernardino terrorists, the FBI dropped the case and sought out hackers more than willing to help.
Shortly after, a digital forensic startup called Grayshift announced they had developed a tool, GrayKey, that could crack any iOS device. Today, GrayKey technology is purchased and used by law enforcement, government agencies, and corporations around the country as a lawful means of accessing iOS hardware.
Knowing you have protections on a federal level should have you feeling a bit less concerned about being forced to unlock your smartphone by law enforcement. However, it is essential you further note that laws regarding legalities around this topic are not written in stone.
If you ever find yourself in a position where police are coercing you to unlock your device, ask to speak to an attorney.