Just about everyone’s lives are contained on their smartphones nowadays, and our devices store gigabytes of potential evidence. But if you are suspected or accused of a crime, can law enforcement force you to hand over phone data?
As recent court cases involving password protections and encrypted data show, it may not be as simple as officers getting a warrant. But the right of the government to get that information largely rests on court decisions made before the technology became intertwined with our daily lives.
What are the primary ways the government gets phone data?
Third parties: With the right court order, law enforcement may be able to get whatever it wants because they don’t need physical possession of your phone. Most people back up their data on the cloud, and companies like Apple may be required to give it to them.
- What are your rights?: You are protected from illegal searches and seizure by the Fourth Amendment. At the same time, law enforcement faces requirements over getting subpoenas, court orders and warrants laid out in a provision of the Electronic Communications Privacy Act of 1986.
Directly accessing your phone: While it’s not a guarantee, there’s a chance officers won’t be able to access your phone if it’s password-protected or has biometric unlocking features. Law enforcement may be able to use tools like Cellebrite of GrayKey to crack your password if they have the proper warrant.
- What are your rights?: The Fifth Amendment says you cannot be compelled to incriminate yourself, and civil rights advocates say that means you don’t have to give officers your password. Many courts have agreed with this, while others require the government to disclose specific information they expect to find that can be used as evidence.
Most legal precedents are from another time
Many of the laws that the government cites to get your phone data are decades or centuries old. Judges often make rulings based on decisions rendered over information stored on paper, whereas our phones contain massive amounts of personal data. Before you agree to hand over your password or phone data to law enforcement, contact an experienced criminal defense attorney who will protect your rights.