Do police have a right to access your phone data?

| Apr 1, 2020 | Criminal Law | 0 comments

For many of us, our smartphones contain gigabytes of the intimate details of our lives, and that makes them a likely source of evidence for police officers if they suspect you’ve committed a crime.

Our phones can track where we’ve been, who we talk to and the things we buy, which make them a potential gold mine of information for police. But protections do exist to keep that data private.

How does law enforcement get your phone data?

The government’s ability to get the information and the rights to keep it from prying eyes are still evolving in the legal system. But there are two main ways police can gain access:

Directly from your phone: Your best protection is to have a passcode or use biometric unlocking features on your device, such as facial recognition or fingerprint protections. There is still a chance they can get in by using sophisticated passcode cracking tools if they have the necessary search warrant.

  • What are your rights?: The Fifth Amendment says you don’t have to supply self-incriminating testimony to police and civil rights advocates say that means you can’t be forced to give them your passcode. Most courts seem to agree, but if the government can prove that it already knows what the information is, they can argue it’s not self-incriminating to access your phone.

Third-party companies: Most of us store our phone info on the cloud. So, if you back up your iPhone to the iCloud, chances are that the government can get all third-party data directly from Apple, providing they have the right court order.

  • What are your rights?: The Constitution also offers some protection here as the Fourth Amendment safeguards people from illegal search and seizure. Also, a provision of the Electronic Communications Privacy Act of 1986 dictates what law enforcement must do to get that data, such as obtaining a subpoena, warrant or court order.

Confusion and contradictions exist over phone data privacy

Our legal system changes very slowly, and there are no clear-cut decisions over keeping this information private. Legal arguments are often based on laws decades or centuries old that pertain to accessing information on paper.

If the police want to access your phone data, it may be in your best interest to contact an experienced criminal defense attorney here in Arizona. Your lawyer will vigorously protect your rights to keep your personal information private.

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