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Search and seizure: Smartphone pass codes lose protection

| Jan 30, 2017 | Criminal Appeals |

A December 2016 court ruling may have far-reaching implications for people whose phones are in police hands. In a case in Florida, a man has been ordered by an appeals court to provide the pass code to his smartphone so that police can look for potential up-skirt photos, which the man was accused of taking in a store before running out. The ruling is controversial because it runs counter to other high-court interpretations of Fourth Amendment protections.

The defendant was accused of taking an up-skirt photo, though he claimed he merely dropped his phone. This seems like a simple case at first; have the police check the phone for photos. However, the police didn’t have the pass code to the phone, making it impossible to get to the files.

A lower court originally ruled that the defendant didn’t have to give up his pass code, based on the idea that one shouldn’t have to give up “contents of the mind.” The court was also concerned that this would have violated the Fifth Amendment protections against self-incrimination. Giving up the pass code was seen as a version of testifying against oneself.

However, an appeals court then overturned that ruling, saying the “contents of the mind” argument led to unequal protection — pass code users would have been protected, but fingerprint users, for example, would not have the same protection. The appeals court also determined that the pass code was not a crucial piece of evidence, and giving it to the police would not have been the same as self-incrimination. The code, said the court, was considered a “non-factual statement” and thus was not a violation of the right not to self-incriminate. This ruling went against prior court precedents.

The bad news for the general public is that there is now precedent for the police to demand your smartphone pass code, potentially revealing evidence that could incriminate you in an investigation. Thankfully, the precedent is limited largely to the state of Florida.

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