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How secure are our devices from a police search warrant?

| May 14, 2016 | Theft & Property Crimes |

In the digital age, one of the most important topics related to criminal justice has been privacy. The Constitution’s Fourth Amendment protects Americans from “unreasonable search and seizure,” but what that means in relation to technology is not always clear. Technology is also blurring the lines of the Fifth Amendment’s protection against forced self-incrimination.

Usually, law enforcement agencies must obtain a warrant before searching a person’s home and (certain) property. But if the property being searched is an electronic device with strong security features, should suspects be forced to aid in their own incrimination by unlocking the device?

There have been a number of high-profile cases involving highly encrypted devices that likely contained incriminating evidence. In many of these cases, law enforcement sought to compel the defendants to provide passwords or other security information – essentially participating in their own conviction. Most legal scholars would agree that this is a violation of the Fifth Amendment right against self-incrimination.

But now, law enforcement agencies and legal scholars are facing an even more difficult question: How far can the government go to compel someone to unlock a device that uses biometric security?

Earlier this year, a woman pleaded no contest to identity theft. Her iPhone had been seized earlier in a (warrant-supported) home raid. After pleading no contest and being convicted, the authorities obtained a warrant to force the woman to unlock her iPhone with her fingerprint. The reason they wanted access to the phone hasn’t been made public.

This case is important for at least two reasons. First, it seems to occupy a gray area between legal searches and forced self-incrimination. Cellphones can be searched if police have a warrant. And once an arrest has been made, police can take a suspect’s fingerprints without a warrant. But fingerprints are usually for identification purposes. Forcing someone to provide fingerprints to access a potential mountain of evidence seems tantamount to forcing them to provide a password.

The case is also important because this type of situation will happen again (probably a lot), and the precedent set could determine the rights of suspects in the future.

Privacy is one of the most important topics in our lives today, especially when it comes to our interactions with law enforcement. If we don’t fight invasions of privacy now, we should not expect any privacy in the future.


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