Articles / 11.25.2019

Digital Privacy: Are Smart Phones Smarter Than the Police?

By Susan Stone & Kristina Supler

digital privacyIf the eyes are a window to the soul, then a cell phone is a locked doorway to your entire being. That’s why police want cell phones during criminal investigations. However, police can’t just seize your phone simply because you may be a suspect. Police are required to obtain a warrant to search a cell phone. The Fourth Amendment to the United States Constitution protects your right to digital privacy, which is the right to be free from unreasonable search and seizure. There are only two exceptions to this rule: (1) when the owner of the cell phone consents to a search of the phone or (2) when police have probable cause to believe that evidence on the phone is likely to be destroyed immediately.

So what does this mean if the police ask you for your cell phone during a police encounter? You don’t need to hand over your phone. You have a constitutional right to say no. But let’s say the police do have a warrant; then what? In that case, they can take your phone and search it on-site or in a police lab. However, taking a phone and actually being able to access the contents of a password-protected device are two different things.

We all know that passwords are growing increasingly long and complex, not to mention that many phones are now accessible only through biometric input such as a fingerprint or facial recognition. So, if the police lawfully seize your phone but the device is locked, can they force you to unlock (or decrypt) it?

Maybe. Courts around the country haven’t been consistent with their answers. This issue is governed by the Fifth Amendment privilege against self-incrimination, and courts have competing views about the application of the constitutional provision. At the heart of the issue is whether unlocking a device is “testimonial.” For now, numeric/alpha-numeric passcodes appear to enjoy greater constitutional protection than biometric locks.

And yet, as the legal battleground involving compelled decryption remains far from unsettled, police are becoming more adept at accessing data in cell phones when the owner does not provide a passcode. For instance, many law enforcement agencies own Gray Key, which is a tool specifically developed for law enforcement to access iPhones. So, trying to jumble a password won’t necessarily prevent police from unlocking your phone.

What are the take-aways? First, be mindful about what you text and what’s stored on your phone. There’s nothing wrong with having a conversation rather than documenting your entire life electronically. Second, if police approach you asking for your phone, think before handing it over. You have the right to require police to obtain a search warrant. Third, while you have a right to digital privacy, remember that it’s not an absolute right.

If you have any questions about digital privacy or would like to learn more about KJK’s Student & Athlete Defense practice, please contact Susan Stone at scs@kjk.com or 216.736.7220, or Kristina Supler at kws@kjk.com or 216.736.7217.

 

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