Smartphones contain much, if not most, of the intimate details of our lives, and that makes them an attractive target for law enforcement if they suspect you of committing a crime. But what information do they have a legal right to view, and how can they get it?
While police generally try to get data either directly from your phone, or off the cloud, it’s not always clear what they can get or when they can get it, as their ability often depends upon a patchwork of legal precedents that happened before cellphones existed.
Methods of accessing phone data and legal protections
Every time you upload a photo to a social media account, send a text message, use a GPS mapping program or other apps, you generate personal data which law enforcement can access typically in two ways:
From third parties: Police may not need to have possession of your phone in some cases by getting a court order to obtain information stored on the cloud. For instance, Apple can give them everything stored on the iCloud if law enforcement has the proper paperwork.
- Your protections: You do have some rights. A provision in the Electronic Communications Privacy Act of 1986 stipulates that police must get a subpoena, warrant or court order to get the data, and the Fourth Amendment protects you from illegal search and seizure.
Directly from your phone: Police may also want to view the massive amount of information that isn’t stored on the cloud. They may ask or order you to provide them with the passcode or use specialized tools to try to crack the code themselves, providing they have the proper search warrant.
- Your protections: Strong passcodes or biometric unlocking features, such as fingerprints or facial recognition, may be your best defense. The Fifth Amendment is also your friend. Civil rights advocates say that means police can’t force you to incriminate yourself by giving them your code.
Protect your Constitutional rights
Many of the laws cited over accessing smartphone data are decades or even centuries old and were used in cases involving access to paper documents. An experienced criminal defense attorney understands the law as well as methods used by police during an investigation. Your lawyer will work diligently to defend your rights to keep your personal information private.