Last year, Apple publicly opposed an order to help the FBI bypass a cell phone passcode in order to access evidence in the San Bernadino terrorist attack. The tech giant, which adheres to a policy requiring law enforcement to obtain search warrants or subpoenas before aiding in investigations, cited the need to safeguard the personal information of its customers.
The confrontation highlighted the tremendous impact the digital revolution has had on issues of privacy. It also called into question how much access law enforcement and national security agencies should be given to private cell phone data.
The issue of what is and is not legal when it comes to the search and seizure of cell phones is being examined in courtrooms across the country. In 2014, the U.S. Supreme Court unanimously held that cell phones are protected from warrantless searches, ruling on two cases in which police searches of mobile devices led to long prison sentences.
The decision reinforced the Fourth Amendment's protections against unreasonable search at a time when so much of an individual's personal life is stored on their mobile device. The Fourth Amendment provides protection from unreasonable searches and seizures of “persons, houses, papers, and effects” by the government. The ultimate goal of this provision is to protect your right to privacy and freedom from unreasonable intrusions by the government.
In most cases, the Fourth Amendment prohibits law enforcement from seizing someone’s cell phone without a warrant. However, it only guarantees protection from government searches and seizures that are deemed unreasonable under the law. If the authorities have reason to believe that a cell phone contains evidence related to a crime, they may be legally permitted to seize the cell phone for the time necessary to secure a warrant.
While the U.S. Supreme Court frequently approves of warrantless seizures of cell phones to secure possible evidence, law enforcement may not search the cell phone until they have a warrant. Once a warrant has been obtained, however, a suspect in an investigation may be forced to surrender their passcode to assist in a phone search. For example, in December 2016 the Florida Court of Appeal’s Second District ruled that a man suspected of voyeurism must provide his smartphone passcode to aid the police search for incriminating photos. Without a warrant, the federal TSA (Transportation Security Administration) may be able to force a person to apply their fingerprint to unlock a smartphone or other device, but cannot force a person to divulge the passcode to their smartphone.
If no crime has been committed, there is no definitive answer to the question of whether or not you must reveal your passcode to the authorities. In fact, confusion and concern over the legal powers of customs and border control officials is increasing as incidents of seizure and search of digital devices are becoming more commonplace for those entering the country at international airport terminals and other ports of entry.
The laws are extremely complex, but according to certain federal statutes, regulations and court decisions, border officers have the legal authority to inspect, without a warrant, any person trying to gain entry into the country and their belongings. This includes examining “computers, disks, drives, tapes, mobile phones, and other communication devices.” Searches can be conducted with or without suspicion that the person is involved in a crime.
If you plan to travel outside the country and are concerned about keeping your digital data safe, think carefully about which devices you absolutely need to take with you. Consider leaving all of your devices at home and carrying a travel-only phone that contains little personal information. Setting a strong password and encrypting your devices will help protect your data, but you may still lose access to them if border officials decide to seize and examine their contents.
If you believe your privacy has been violated or have specific questions about your rights when it comes to search and seizure of your cell phone, please contact me at 973.509.8500 x213 or email LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.