This article originally appeared in the Libertas Institute.
Can the police force you to unlock your smartphone?
Amidst the continued decline in trust between citizens and the government, the Utah Supreme Court is addressing this very question.
The general constitutional issue under review is this: does allowing police to force a criminal defendant to provide the passcode for a cell phone violate the Fifth Amendment protection against self-incrimination?
Courts are split on how to address the issue. An Indiana appeals court ruled forcing defendants to unlock cell phones violated the Fifth Amendment because it forced the defendant to disclose the “contents of her mind.” However, The federal Eleventh Circuit Court of Appeals reached the opposite conclusion, ruling that police can force Americans to provide passcodes to digital devices, including smartphones.
These rulings have important practical implications. An individual’s smartphone contains a large amount of sensitive — and potentially incriminating — information. Because cell phones do not follow a universal organizational design, allowing the police to force individuals to unlock their phones for an investigative search provides access to all information on the device.
The approach taken by the Eleventh Circuit would allow police to search through hundreds of folders and files in search of information before finding what they are looking for — or realizing the evidence they seek is not on the device. And, after the search is complete, the damage is done. Police now have information that could be used against individuals.
Currently, Utah takes an approach that mirrors Indiana’s, ruling that cell phone passcodes are protected by the Fifth Amendment’s protection against self-incrimination. However, whether this ruling will be upheld or tossed by the Utah Supreme Court is unclear. The Court heard oral arguments last week and are expected to issue a ruling in the near future.
We at Libertas will be keeping a close eye out for this ruling and will let you know what the Court rules and what that means.