Wager Mage
Wager Mage
Photo: Zeynep Seçer
Can they do that? Short answer: If your phone is protected by a passcode or biometric unlocking features, there's a chance police can't gain access to your personal data.
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Read More »The police want your phone data. Here’s what they can get — and what they can’t. Share All sharing options for: The police want your phone data. Here’s what they can get — and what they can’t. Our lives are on our phones, making them a likely source of evidence if police suspect you’ve committed a crime. And there are myriad ways law enforcement can obtain that data, both externally and from the phone itself. Companies that specialize in cracking phone passcodes and exploiting vulnerabilities are getting better and better at undermining them. And although Apple has tried especially hard to make its phones impossible to break into, more and more law enforcement agencies are using those tools to gain access to devices, even when someone is accused of relatively petty crimes. While there are a few good primers online that cover the steps you can take to minimize your phone’s exposure to law enforcement surveillance, there’s no way to completely guarantee your privacy. When it comes to data that can only be obtained from access to your phone, what law enforcement can actually get varies depending on how you lock it down, where you live, and the jurisdiction of the law enforcement agency that is investigating you (local police versus the FBI, for instance). Here are some of the main ways the government can get information from your phone, including why it’s allowed to and how it would do so.
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Read More »Essentially, the Fifth Amendment says you can’t be compelled to give self-incriminating testimony. (This amendment is perhaps known best to you as that dramatic moment on Law & Order when the person on the stand says, “I plead the Fifth.”) Testimony, in this case, is defined as revealing the contents of your own mind. Therefore, civil rights advocates say, the government can’t force you to tell them your phone’s password. Most courts seem to agree with this, but that’s not always enough. There is what is known as the foregone conclusion exception. That is, a defendant’s testimony is not self-incriminating if it reveals something the government already knew, and the government can prove that prior knowledge. In this case, the defendant’s testimony is a foregone conclusion — a predictable outcome. So, for phone passwords, the government can and does argue that revealing the password only shows that the phone belongs to the defendant. If the government has enough proof to establish the phone’s ownership, that’s a foregone conclusion that the defendant would also know its password. Some courts have interpreted this to require the government also to show it has knowledge of the specific pieces of evidence it expects to find on the device. This exception comes from a 1976 US Supreme Court ruling. In Fisher v. United States, someone being investigated for tax fraud gave documents prepared by his accountant to his lawyer. The IRS wanted those documents; the defendant said that producing them would be self-incriminating and therefore was protected by the Fifth Amendment. The Supreme Court sided with the IRS, ruling that since the existence and location of the tax documents was a “foregone conclusion,” the act of producing them didn’t tell the government anything it didn’t already know. Obviously, a 44-year-old decision over tax papers doesn’t take into account how information can be stored today, nor how much. “The EFF’s position is that the foregone conclusion exception is very narrow and should never apply in these passcode cases,” Crocker said. But without further guidance from the Supreme Court, it’s largely been left up to interpretation by lower courts, with state courts considering their state constitution’s provisions as well as the federal. The result, Crocker says, is “a total patchwork of [decisions from] state Supreme Courts and federal courts.” For example, in 2019, Massachusetts’s highest court forced a defendant to reveal his phone’s passcode while Pennsylvania’s highest court ruled that a defendant could not be compelled to unlock his computer. Indiana’s and New Jersey’s highest courts are both considering compelled passcode disclosure cases. On the federal side, the Third Circuit Court of Appeals ruled that a defendant could be compelled to unlock multiple password-protected devices, even though the defendant claimed he couldn’t remember his passwords. The 11th Circuit Court of Appeals, on the other hand, ruled the other way in a different case. “It’s very much in flux,” Crocker said. “Eventually, the US Supreme Court could get involved and resolve this.” There are other ways to protect your phone. Some phones can use fingerprints, facial recognition, and iris scanners to unlock instead of passwords. Law enforcement is allowed to use people’s bodies as evidence against them, for instance by compelling them to participate in suspect lineups or provide their DNA. So if the police can take your fingerprints, can’t they use them to unlock your phone? Again, courts are all over the map on this. “The issue with biometrics is, is it testimonial?” Granick said. “The courts have not entirely decided that, but there have been a couple courts recently that said biometrics is basically the modern technological equivalent of your passcode.” Crocker says courts should consider that the evidence police can get from your fingerprint is much more restricted and known than what they can get when your fingerprint unlocks a phone. So far, though, he says, courts have been more likely to rule that the Fifth Amendment does not apply to biometrics than they are that it applies to passcodes.
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Read More »Yet another factor to consider here is that, while it’s impossible for police to read your mind and get your passcode, they can hold a phone up to your face or press your finger on it to bypass the biometric lock. And while your lawyer can (and should) argue that any evidence found this way was illegally obtained and should be suppressed, there’s no guarantee they’ll win. “It’s fair to say that invoking one’s rights not to turn over evidence is stronger than trying to have the evidence suppressed after the fact,” Crocker said. So, all things considered, if you’re worried about law enforcement getting access to your phone, your safest bet is to just use a passcode.
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