Most cell phones today come with the ability to lock the screen -- a feature that prevents others from picking up your phone and using it or going through the contents. In today’s society, where we rely on our cell phones for everything — banking, saved passwords, sensitive emails and even work-related documents and files — a password can add an extra layer of protection to keep out prying eyes and snooping fingers. But when you’re arrested and the police are trying to use the contents of your cell phone as evidence, such locking systems can become a problem.
The most common method of locking your phone is through the use of a passcode: 4 letters or numbers that, if keyed in correctly, will unlock your phone completely, allowing full use. But new technology has provided additional security features for users with the most recent Apple and Android releases, and some users now have the ability to lock and unlock their phones with their fingerprints. With this security feature, users typically have the option to set up a backup passcode that other people would need to know in order to unlock the phone, but a simple fingerprint from the owner would grant him or her access without the passcode.
Can You Be Ordered to Unlock?
Whenever technology changes — especially widely-used technology, like cell phones — there are legal aspects to be considered. In this case, what can the police ask a suspect to do with his or her cell phone if it’s locked with a passcode? What about when you have fingerprint locking technology? It’s important for all cell phone users to be aware of what is and is not protected under the law as far as their phone privacy is concerned.
According to a recent ruling from the Virginia Circuit Court, fingerprint security is not as secure as you may think. In Commonwealth of Virginia v. David Charles Baust, Judge Steven C. Frucci ruled that a police officer can have a suspect unlock his or her phone with a fingerprint, if that is how the security system on the suspect’s phone is set up. However, numerical or letter passcodes are still off-limits. So what is the difference between unlocking with a passcode and unlocking with your fingerprint?
The U.S. Constitution gives every American citizen the right to an expectation of privacy in his or her home and on his or her person, and in most cases, this privacy extends to personal space and belongings, like a car and sometimes even cell phone data. The Fifth Amendment also gives citizens the right not to incriminate themselves — and this is the issue in play in the Virginia Court’s ruling.
If you provide a passcode verbally, meaning you tell the police what digits to enter to unlock your phone, you could potentially be providing the officer with evidence against that could be used against you — which is a violation of your Fifth Amendment rights. However, if you simply swipe your thumb over the unlock button, you have not provided any verbal evidence and your Fifth Amendment rights do not come into play.
As we come to rely more and more on technology in every aspect of our lives, it’s important to understand how that technology could be used against you in court or criminal investigations. For more information, contact a New Jersey criminal defense attorney at Helmer, Conley, and Kasselman, PA today.