Can you be legally forced to unlock your phone or laptop?
The US Supreme Court (hereinafter Court) recognized in the case of Riley v. California that cell phones are not like ordinary closed containers or physical objects when it comes to when their contents can be searched by police. The Court held that they are minicomputers that can contain the most intimate details of one’s life. Due to the immense storage capacity, combined with the many different types of private data contained, the Court held that the Fourth Amendment of the US Constitution requires law enforcement to get a warrant to search a cell phone, even in the event of an arrest.
But what if a device is locked or coded, can law enforcement force a suspect to unlock or decode it?
Majority of Americans now own several devices that are locked by a passcode, which can be a secret number, pattern, alphanumeric password or by fingerprints or face scanners. These locks serve to make its contents inaccessible and unreadable until unlocked or decoded by an authorized user.
While the lawfulness of a device search is a Fourth Amendment issue, the Fifth Amendment right against self-incrimination is the key defense against forced decoding…you can’t be forced to give up information that could incriminate you!
The act of decoding a device may be a violation of the Fifth Amendment if it explicitly or implicitly conveys the fact that certain data exists or is in the possession, custody, or control of an individual. Such an act of production may itself be incriminating or effectively acknowledge the existence, possession and control, and authenticity of potentially incriminating evidence on a device. This analysis often depends on the type of lock used.
Passcode Locks: Courts have generally found that forcing individuals to provide their numeric or alphanumeric passcode is potentially incriminating under the Fifth Amendment, as it forces the defendant to reveal the contents of his own mind. It is similar to forcing the production of a combination to a wall safe, which is incriminating, as opposed to surrendering the key to a safe, which is not.
Biometric Locks: Some courts have found nothing testimonial under the Fifth Amendment about forcing the production of biometric keys, such as a fingerprint, similar to those that gather physical evidence. Recently, others have begun to hold that forcing the production of a biometric key is just as incriminating as a numeric one. From this perspective, biometric features serve the same purpose of a passcode, which is to secure the owner’s content, practically making them functionally equivalent.
If there is a question concerning whether the search of your cell phone or laptop was legal, call us to discuss the matter.