Can the police force you to unlock your smartphone?

odens-phone-blogpost

Article re-posted with permission from Eric T. Oden

Original Source
Date of article: September 14, 2016

(Eric T. Oden)Around this time every year, Apple dominates the headlines with news of a new iPhone model. The major increase of personal information we keep on our smartphones has been a hot topic in the legal community recently. We have come a long way since the days of HBO’s “The Wire,” when phones only held call and message logs.

Now, our smartphones store location data, texts, notes, calendars, photos, browser history, and a lot more. All of this information can be handy to the police when they are investigating a crime. That brings me to the question of this post: can the police make you unlock your smartphone?

The answer is maybe, and is related to the right against self-incrimination under the Fifth Amendment; here is the relevant text: “No person … shall be compelled in any criminal case to be a witness against himself…” This has been taken to mean that no person shall be forced to testify against oneself when information obtained may be used in a criminal proceeding. So, what does it mean to be a witness against oneself?

Here is the breakdown: on the iPhone, and many other smartphones, there are two ways to unlock the phone: (1) type in a security code (or other such activity which differs by phone) or (2) provide the phone with your fingerprint. These two options do not provide equal protection to the user (you).

The Justice System (police and the courts)  can make you provide your fingerprint to unlock your smartphone. Courts have deemed providing your fingerprint much more similar to identifying yourself than making any sort of statement. Forcing you to provide your security code has been found to be a statement against yourself, so is protected by the Fifth Amendment. So, the answer to the original question is that police can make you unlock your smartphone if it unlocks with a fingerprint, but cannot force you to give them your security code.

If you have an iPhone and use the fingerprint scanner, power off the phone. This will disable the scanner for the first unlock after your phone is turned back on, requiring a security code. Which will prevent you from being forced to unlock your phone, and will, therefore, protect you from making a statement against yourself.”


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