Suppose police officers suspect that you have been involved in a crime, and they believe evidence of your involvement can be found on your phone. Thus, they ask you to unlock your device so they can search your photos, videos, messages, and other data stored on it.
Because we use our phones for practically everything these days, yours might contain very private information that you don’t want others to access. Your initial reaction may be to politely refuse an officer’s request to unlock your phone, but they insist that you decrypt it.
As you contemplate whether to give up your passcode or put your finger on the sensor, you might wonder if law enforcement officials can actually force you to unlock your phone.
This question is not easily answered. Essentially, it comes down to whether unlocking your phone is a violation of your constitutional rights. Courts are slowly starting to address the matter but have differing opinions over what is lawful.
The Technology and Law Gap and Your Constitutional Rights
The biggest issue surrounding whether you must unlock your phone for investigators is that there is a huge gap between technology and the law. Many of the state and federal statutes in effect today were established years ago – long before we had mobile devices that we can store our whole lives on. Because of this, the laws courts and other legal officials refer to do not specifically address the challenges of today’s digital age.
The debate about forcing someone to unlock their phone centers around Fourth and Fifth Amendment protections. Under the Fourth Amendment, you have the right to be free from unreasonable searches and seizures. Generally, that means law enforcement officials must have a warrant before they can search a person’s property.
If an officer wants to go through the contents of your phone, they need a warrant to do so – that or your permission. Thus, if you say it’s okay to search your phone, investigators are free to look through it without needing a warrant or being accused of violating your rights.
Now, suppose officers have a warrant, but the device is password protected. Does the warrant mean you have to unlock your phone? Not necessarily. But this is where things get a little fuzzy.
Under the Fifth Amendment, you are protected from making self-incriminating statements – essentially, this is your right to remain silent. If you are under investigation for a crime, you do not have to answer law enforcement officials’ questions.
What courts have been asking and trying to answer is whether giving up your passcode or providing biometric data (for example, your fingerprint or faceprint) is the same as testifying against yourself. Courts have previously ruled that giving up your passcode/password or pattern lock reveals the contents of your mind; thus, the conduct is protected under the Fifth Amendment.
Recently, the question arose as to whether biometric data was subject to the same protections. In other words, is using your fingerprint or faceprint to unlock your phone akin to testifying against yourself. In 2019, a U.S. District Court Judge for the Northern District of California said it was, and law enforcement officials cannot force someone to provide such data to get into their phone.
However, that ruling did not settle the matter once and for all. Two years after the decision, a federal judge granted a prosecutor’s request to have a man unlock his laptop using facial recognition. The man was allegedly involved in the U.S. Capitol riots in January of 2021. His laptop was lawfully seized under a valid search warrant, but it was locked. The judge stated that having him unlock the device was lawful and likened providing a faceprint to submitting a handwriting or DNA sample. Still, opponents argue that the decision was a violation of the man’s Fifth Amendment rights.
Protecting Your Rights
Even though there is a gap between technology and the law, people’s rights must be protected. Yet, the patchwork of court rulings concerning whether individuals must unlock their phones leaves people vulnerable to law enforcement misconduct and rights violations.
If you have been accused of a crime, consult with an attorney about your case. They can review everything that happened, from the arrest to official charges being filed, to identify violations of constitutional protections and file motions to have evidence dismissed.