By Sean Thomson
A few months ago, an interesting issue regarding the government’s ability to force someone to assist them in conducting a search was in the news. The FBI wanted the Apple Corporation to develop a tool that would allow the FBI to crack into and search the data contained on a deceased suspected terrorist’s iPhone. The problem was that the phone was encrypted and passcode protected, and would delete all the data on the phone if an incorrect passcode was attempted too many times. The phone was thus functionally impenetrable, the FBI argued, without Apple’s help in developing a workaround tool. In a high profile decision, Apple refused to develop the requested tool for the FBI.
As a criminal defense attorney, I am always interested in the government’s efforts and power to search. The issue that story presented made me think about the iPhone in my pocket. Like that other phone, it is encrypted by default. It will also delete its data after too many incorrect attempts to guess the passcode I set. Was my data impenetrable, like the FBI said, or could the government get at it?
I began to think things through from a legal standpoint. One complication the FBI had to deal with in the above case was that the person who knew the passcode to the phone was dead. They could not get into the phone, in part because they could not persuade, cajole or compel him to tell them the passcode, because dead men tell no passcodes.
But if it were me, or my client, could law enforcement make us give up the secret code to get at the data on the phone?
Like many things in the law, the answer is complicated and unclear. Generally, the Fourth Amendment requires that a law enforcement agent get a warrant from a judge to conduct a search, including search of a phone. However, once a warrant is granted, whether the thing to be searched is locked or not is often irrelevant. For example, if the police have a warrant to search your filing cabinet, but the drawer is locked, you can either give the officers your key, or watch them drill the lock open and get in anyway.
In some ways, a phone today is analogous to a filing cabinet. For example, I have all my past bills, correspondence, scans of important documents, medical information, shopping receipts, and more residing on the little electronic slab in my pocket. If an officer armed with a warrant could legally break into my filling cabinet to get those documents, why is my phone any different?
How a phone is different is an ongoing conversation, but one way it is different is that I cannot hand over a physical key to my phone. The “key” to get into my phone is a sequence of digits that lives in my head, and nowhere else.
So, the issue is compounded: the officer may have a judge’s blessing under the Fourth Amendment to get into my phone, but in order to get the “key” to actually allow access, they would have to compel me to speak the sequence of digits. The government compelling a person to provide evidence against oneself implicates another amendment, the Fifth Amendment, which protects us against self-incrimination.
However, how the Fifth Amendment applies in this scenario is still an open question too! Prior judicial decisions have established that we only have a Fifth Amendment right against compelled self-incrimination when the government is compelling us to say things that can actually incriminate us. For example, if I was told to state my name for the record, I could not “plead the Fifth.” Announcing that I am Sean Thomson could not incriminate me, so I do not have the right to refuse to answer. If the next question was, “what did you do last St. Patrick’s day?” I could “plead the Fifth,” because answering that question could incriminate me.
Courts around the nation have come up with different ways of looking at the issue. Some have said that compelling a person to give up their cell phone passcode is compelling them to potentially incriminate themselves. Others have decided that making someone give up their passcode is more like making them state their name on the record. They reason that there is nothing inherently incriminating about being forced to speak the digits of passcode – it’s the evidence that is hidden behind the passcode that is potentially incriminating, but that’s not the same as forcing someone to speak the incriminating information itself.
In one ongoing case, a court threw a defendant in jail for contempt when he refused to provide the password to a computer when ordered to do so. The court did not believe the defendant had a Fifth Amendment right to remain silent on that question.
The question of whether your knowledge of a passcode or password is protected by the Fifth Amendment is still one that is being battled over in the courts. However, one issue that seems less contentious is compelling the use of fingerprint scanners to unlock phones. Many newer phones are equipped with a fingerprint scanner that (once you set it up) will unlock your phone when you place your finger on the scanning pad. Courts have generally agreed that compelling someone to place a fingertip on the scanning pad is not covered by the Fifth Amendment. It does not require someone to speak at all, and so is functionally equivalent to making someone had over a physical key.
The rub? We are still in the Wild West on this issue. The law is getting settled, but no one knows exactly how it will pan out yet. Personally, I don’t have any incriminating documents on my phone, but I do have documents that are for my (or my client’s) eyes only. I don’t relish the idea of the government ever trying to get into my phone. After I thought about all of this, I double checked my phone was encrypted, turned on data deletion after 10 attempts to break in, and turned off my fingerprint scanner. If the government is ever going after your digital devices, I bet you will wish you did the same!