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Posted on December 17, 2014.
Should you activate the fingerprint unlock feature on you new iPhone 6? That might depend on how much you fear the government.
Regardless of whether you do so, be aware of your rights regarding whether the police may search your cell phone.
Let’s start with a few recent court decisions.
In June, the Supreme Court held that, generally speaking, if you are stopped or arrested by the police (say, at a traffic stop), the police cannot search your cell phone without first getting a warrant. It held the Fourth Amendment warrant requirement applies to the phone you carry.
To get a warrant, the police have to persuade a magistrate that your phone is likely to contain evidence relevant to a crime.
In another case, decided in July, a Maryland federal trial court held that the government is entitled to search your phone without getting a warrant when you cross the border regardless of whether you are arrested for a crime.
In a third case, in October a Virginia trial court judge held that a criminal defendant cannot be compelled to give the unlock code for his phone, because doing so would violate a criminal defendant’s Fifth Amendment right to not testify.
Yet, the court held that a criminal defendant can be compelled to do a fingerprint unlock because providing a fingerprint isn’t testimony. You can be forced to give samples, such as DNA or handwriting.
So, if you’re concerned about your privacy, what should you do?
While I’m not a technologist, here’s what I have gathered:
If the police seize your phone, such as at a traffic stop, they probably will ask for consent to search the phone. You can refuse. In most cases, this will force the police to try to get a warrant for the search.
Next, the police or a court could ask you to unlock your phone. If the holding by the Virginia trial court withstands challenge, you could use your Fifth Amendment rights to refuse to provide the unlock code, but you could be forced to fingerprint unlock.
So does this mean you shouldn’t activate fingerprint unlock? Maybe. Note that, if you power off your phone (hold down the power button and choose power off), you cannot unlock your phone by fingerprint. You have to use your password. So you could try to power off your phone when you see the police coming.
How effective would a password be to stymie a police search? As to what’s only on your phone, that depends on your password strength. If the police get a warrant to search your phone, they can try to guess your password.
To counter that, you can set your phone to erase all data after 10 failed password attempts. Remember some passwords are easily guessed.
Also, you could choose to use a strong password (e.g., a string of random letters and numbers) rather than just a four-number pin. But you have to be willing to enter that password.
The police could try to have your phone cracked. Yet, the iPhone 6 comes with strong encryption that’s implemented when you put a password on your phone. Apple touts that this prevents even Apple from extracting the data on your phone if asked by the police. Various law enforcement officials have criticized this feature.
But what if phone information also is in other places? If you used iCloud backup, the police can still get a warrant to require Apple to release what you backed up to iCloud. The encryption on your phone won’t prevent Apple from complying with that request.
Also, a lot of sensitive information on your phone is communicated to others. People receive calls and texts. Wireless carriers have call records and phone location information. Perhaps you use another cloud service, such as Amazon’s, to automatically store your pictures and videos in a cloud. Such information could be subpoenaed from these other parties.
And remember we are just talking about law enforcement. If you are in civil litigation (for example, a divorce or child custody proceeding) or have evidence relevant to it, in many situations you can be compelled to produce information you possess or control, such as what’s in your phone.
Ultimately, it’s privacy versus connectedness and convenience. If you want maximum privacy, don’t have a cell phone (or any other computer, a GPS, an EZ pass, or cable TV). Or, if you’re like me, the lure of fun and convenience is too strong to resist.
Written on December 17, 2014
by John B. Farmer
© 2014 Leading-Edge Law Group, PLC. All rights reserved.