Passcodes – No one will contest that a person’s phone stores more private information than they would care to share with their friends, neighbors, and, most importantly, the police. Even those who say “I’ve got nothing to hide” would still squirm if they knew local police, IRS, or some other government agents were crawling through their text messages. Those same people would be shocked to learn how often these groups try to get their hands on phones.
Let’s say it happens: the police are investigating something that at work, school, or on the road. They find your phone and want to look through it, but it’s locked. They tell you to unlock it – what do you do? Turns out your options will depend on what kind of lock you use; the law treats passcodes, fingerprints, and face recognition differently.
You might think that high-tech fingerprint and face recognition provides the best protection, but that’s not entirely true. Courts have allowed the police to compel people to produce their voice, blood, handwriting, and face for all sorts of purposes over the years. They’ve reasoned that there is no Fifth Amendment protection because the police aren’t forcing the person to reveal the contents of their mind or bear witness against themselves. Rather, the compelling a person to unlock a phone with their finger or face is no different than collecting blood after a car crash to see if the driver was drunk.
A passcode, on the other hand, would require that person to communicate a secret known only to that person, which puts the Fifth Amendment in play. So far there aren’t many courts that have weighed in on how strong the Fifth Amendment’s protections are in this space, but some judges around the country have suggested that the court can compel a person to produce a passcode when the person’s knowledge of the passcode is a “foregone conclusion.”
Question 2 Endorsed
The debate so far has focused on federal rights, and whether producing phone unlocking methods require “testimony” and whether that testimony requires a person to give up “incriminating” information about themselves. But New Hampshire recently enacted a unique amendment to its Constitution that might change how this issue is treated in this state. This past November, the voters overwhelming endorsed “Question 2” which adds the following language to the Constitution: “An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.” At this point, it’s too early to tell how this provision will be interpreted, but those experienced in criminal law are betting that the discussion on phone locking will focus less on their testimonial nature and more on whether the government is intruding on private or personal information. This dramatic shift bodes well for those who don’t bristle at the idea of their government rifling through their pictures, social media, search history, contacts, app usage, text messages, and everything else.
If you find yourself concerned with an imminent threat to your privacy, get in touch with a lawyer who litigates these issues. To get started, call Jared Bedrick at Douglas, Leonard & Garvey, P.C., (603) 288-1403 or fill out our online contact form.