Police can’t force you to unlock your phone

On Behalf of | Feb 20, 2019 | Criminal Defense

Think about all the private data you have in your phone. There are emails, text messages, photos, data stored in apps — just to name a few. By just looking at someone’s smartphone, you could get a pretty good idea of who someone is and how they like to spend their time.

But is there also incriminating information in our phones? And do police have the right to search our phones to gather evidence?

Biometrics: When your finger, face or iris opens your phone

recent Forbes article looked at a case where a judge ruled that police cannot force you to unlock your phone through biometrics, such as your fingerprint or iris. This falls in line with an earlier ruling where a judge ruled that police cannot force someone to verbally give up the password to their phone.

To get to this most recent ruling, police were attempting to obtain a warrant to be able to search the phones in a Facebook extortion case.

However, the judge said no. The ruling pointed to two pieces of information:

  • No. 1: The request for the warrant was very broad, not limited to specific people or specific phones. If granted, police could have searched the phones of anyone who happened to be at the property.
  • No. 2: The government does not have the legal right to force people to incriminate themselves.

This last point is very important. The reason why a police officer cannot force you to tell your password is because this would be a testimony. However — while using your body to open a phone is not giving an actual verbal testimony — both would have the end result: The police officer getting into your phone.

What’s in your phone may still be accessible

Part of the reason for denying the warrant in this case was because the request was broad and the police could have most likely obtained the information they wanted — Facebook conversations — another way. In this case, the judge specifically pointed out that police could have just asked Facebook to give them the messages, which is something the technology company has done in the past.

Technology and the law

We live in a fast-paced world where technology is constantly changing and growing. While most of us could not picture life without our smartphone, it honestly was not all that long ago that we were all using regular cellphones that we used for little more than talking or texting. Now, though, we use our phones for everything from banking to keeping up with social media.

While our country’s founding fathers could not have predicted a world with the type of technology we have today, it is important that as laws evolve that the core tenants of our constitutional rights stay intact. This means making sure the government does not overstep its bounds into our personal lives in terms of unreasonable search and seizure or forcing us to incriminate ourselves.

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Charles Waechter | Lawyer.com Premium
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