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Do police have a right to view your phone data?

| Jun 29, 2020 | Criminal Law |

Most people’s lives and actions are detailed on their smartphones, and they become a hot commodity for the police if they suspect you have committed a crime. That’s especially true in the wake of protests that erupted after the killing of George Floyd while he was in the custody of Minneapolis police.

When civil unrest occurs, law enforcement typically ramps up surveillance efforts, both for those participating in peaceful protests, as well as people they suspect of criminal behavior. One of the potential sources of evidence is the information on your cellphone.

What data can law enforcement get off your phone?

When police try to get private data, what they can get really depends upon how you lock your device, where you live and the investigating agency’s jurisdiction. There are two main methods that law enforcement use:

Third-party data: With the right court order, officers can generally get what they want without physical possession of your phone by getting personal information stored elsewhere, such as Apple if your data is backed up on the iCloud.

  • What protections exist?: You are protected from illegal search and seizure under the Fourth Amendment. Also, police must obtain a court order to get information under a provision in the Electronic Communications Privacy Act of 1986. However, if the government has the right paperwork, they can usually get what they want.

Directly off your phone: Your best chance at protecting your private information is through a strong passcode or using biometric unlocking features on your phone, such as facial recognition or fingerprints. However, law enforcement can also use passcode tracking tools to try to gain access.

  • What protections exist?: The Fifth Amendment is likely your best friend, as it says you can’t be forced to incriminate yourself. Civil rights advocates say that means police can’t make you reveal your passcode. Most courts have agreed, but the government often finds ways to get around those protections.

Courts rely on decisions that predate the technology

Information from a cellphone, such as emails, texts, financial transactions and other data, can be extremely helpful to law enforcement. Court decisions related to getting that information rely on legal cases decided well before cellphones existed, and most pertain to attempts to access paper documents.

Your best bet to protect that information is through setting a strong passcode, as some courts have allowed police to take a suspect’s fingerprints to unlock their phone. An experienced criminal defense attorney here in Montana will protect your rights to keep personal information private.