01 Feb Can Police Force You to Unlock Your Phone?
Understanding Your Rights Regarding Cell Phone Privacy
Hopefully, you will never find yourself in a situation where a police officer is demanding that you unlock your cell phone. This type of situation is so seldomly experienced by the majority of Americans. Because of this, many people do not understand their rights regarding this matter. It is important to educate yourself on topics such as cell phone privacy. This is especially important as our society continues to advance in the world of technology.
Can the police force you to unlock your phone? Until 2019, police officers could force suspects to use biometrics to unlock their cell phones. This includes things such as facial recognition or fingerprints. However, in recent years, this has been overturned. Police can no longer force an individual to unlock their cell phone using a passcode or biometrics barring a very specific warrant.
As technology continues to advance, we are conducting more and more of our lives on our cell phones. While this certainly is convenient, it also presents unique challenges and potential privacy breaches.
In this post, we will take a closer look at when, and if, a police officer can force you to unlock your phone. We will also look at some of the levels of access that law enforcement can gain to the data stored on your personal device. We hope this educates you on ways to better protect and preserve your privacy when it comes to your cell phone.
Can the Police Unlock Your Phone Using a Passcode?
In today’s society, we store more information than ever before on our cell phones. From secure login information to private photos, personal messages to business deals, cell phones contain data that we consider private.
For this very reason, cell phone manufacturing companies introduced the lock screen. This requires the user to enter a secure passcode to gain access to the information. This, of course, prevents police officers and law enforcement from searching the data stored on a suspect’s cell phone unless the suspect hands over their passcode. Clearly, this presents a problem as the court considers it to be self-incrimination.
Cell Phone Passcodes Are Considered Verbal Testimony
For several years now, courts have prevented police from forcing people to provide the passcode to their cell phones. The court considers cell phone passcodes to be verbal testimony. An individual must provide this type of statement willingly, not forcefully.
However, if the police request that you unlock your cell phone, and you do so willingly, they can search any personal or private data that you store on the device. If a police officer asks you to unlock your phone, using the password or biometrics such as face ID or fingerprints, you can legally decline, stating your Fourth and Fifth Amendment rights.
Can the Police Unlock Your Phone Using Biometrics?
So, we know that police can not force you to unlock your cell phone using the passcode. But what about other entry methods such as facial recognition or fingerprints? Until recent years, the court upheld that a police officer could force a suspect to unlock their phone using face ID or fingerprints. The court did not consider this as testimony at the time.
However, in 2019, California judge Kandis Westmore ruled against this practice. In her official ruling, judge Kandis Westmore wrote, “If a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device.”
During her ruling, judge Westmore compares biometric features such as facial recognition and fingerprints to parts of a polygraph test that the law considers testimony. Ruling that biometric access to a cell phone is testimony means that an individual must provide this data willingly, not forcefully.
Violation of Fifth Amendment Right Against Self-Incrimination
They did not know it at the time. However, our founding fathers protected this very situation in the Fifth Amendment to the United States Constitution.
The Fifth Amendment reads as follows, ”No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law….”
By forcing an individual to unlock their cell phone using a passcode or biometrics, a police officer violates the Fifth Amendment right against self-incrimination.
Violation of Fourth Amendment Right Against Unreasonable Search & Seizure
A police officer forcing you to unlock your phone could violate your Fourth Amendment right against unreasonable search and seizure.
The Fourth Amendment reads as follows, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Police need a warrant to search your device unless you verbally consent to the search. They can also search your device if there’s probable cause to believe you are the suspect. And, of course, they can search your device if you’re under arrest. If a police officer attempts to force you to unlock your cell phone, and you don’t fall into one of these three exceptions, simply refuse access and state your Fourth and Fifth Amendment rights.
Can Police Get a Warrant to Unlock Your Cell Phone?
So, what if the police have obtained a warrant through the court to search your cell phone? First, you must ask to see the warrant and read it thoroughly. This will provide you with information regarding the limits of the warrant. You will find details on whether or not they can inspect the data on your cell phone in the warrant.
However, if the police ask you to unlock your cell phone so that they can inspect the data, you can legally decline stating your Fifth Amendment rights! They can not force you to unlock your cell phone, even with a warrant. They may, however, confiscate the device. Once the device is in their possession, the police will continue to attempt to gain access.
If you find yourself in this position, you must remain calm and state your rights. It is also wise to contact a lawyer. An experienced lawyer will be able to represent your Constitutional rights and freedoms to the court if need be.
Law Enforcement Access to Third-Party Data on Cell Phone
We store a lot of data on our cell phones. While some of this data is personal, other data is third-party. Third-party data includes information stored to iCloud and data saved to any social media platform, to name a few examples. Basically, anything that a provider or company could access through their own platform is third-party data.
So, does law enforcement have access to this third-party data? Yes! They must use legal means to obtain the information through a court order. In this way, law enforcement can access the third-party data that you store on your cell phone.
Law Enforcement Access to Personal Data on Cell Phone
If you have a passcode set up on your cell phone, law enforcement can not gain access to the personal data that you store exclusively on your cell phone. For this reason, many people carefully select what data their phone automatically stores to iCloud or other third-party storage services. However, if law enforcement has a warrant to search your cell phone, they may be able to gain access to this personal data through passcode cracking tools and software.
Even with a warrant, however, you do not have to provide the password to your cell phone or grant access through biometrics for any reason. This violates your Fifth Amendment rights.
Law Enforcement Access to Cell Phone Data of Deceased
When you pass away, your Fourth and Fifth Amendment rights typically become void. However, law enforcement may not be able to gain access to the phone due to a lack of a passcode. In this situation, access is dependent on the phone manufacturer. Many cell phone manufacturers refuse to grant access as it violates their privacy policies.
Protect Your Cell Phone Privacy Rights
As our society continues to become more entrenched in technology, you must protect your cell phone privacy right. By educating yourself on your Constitutional rights and freedoms, you can ensure that no one violates these rights.
Parents must begin to educate their children on similar topics such as whether teachers can go through student’s phones. As Americans, we must continue to fight for the freedoms that our Constitution so clearly outlines. Many freedoms are under attack in our country. Educating ourselves on matters such as losing our 2nd Amendment rights, cell phone privacy rights, and others will help us build a country that protects equality, liberty, and justice for all.