Feb, 2019

Written by kdadmin,
posted in Wilka, Welter & Ash LLP Law Blog.

Your Phone and Your Rights Today

Your Phone and Your Rights Today

In the advent of the age of the mobile phone, the proliferation of the functional uses of such have created a conundrum for law enforcement who seek information during investigations. The issues surrounding the Constitutional rights of citizens versus the necessity of law enforcement to gain quick access to information is nothing new; however, the right to privacy has most recently come into direct clash with the efforts of police to gain access to information that is contained on mobile devices. Increasingly, mobile phone manufacturers have come up with new and innovative ways to preserve the privacy of their consumers by including features to secure devices using biometric processes in addition to numerical codes. Now your fingerprint or even your face can be used to secure your mobile device. With such new technology comes challenges to determine the line in the sand between a person’s rights and what a law enforcement officer can ask in order to gain access to your phone.

In a previous blog post, the need for a search warrant in order to gain access to a mobile phone was considered. The Supreme Court in Riley v. California, No. 13–212, 728 F. 3d 1 (2014) and its companion case United State v. Wurie, wrestled with the decision as to whether a search warrant was needed to conduct a search of a person’s mobile phone. The long-standing ruling in Chimel v. California, which afforded police the ability to search items on a person based on the premise of officer safety and the preservation of evidence, was overturned when the item was a mobile phone. In Riley, Justice Roberts distinguished a mobile phone from any other types of evidence by saying, “[T]he United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items … That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.” The concern of the Court was the vast amount of information on a mobile phone. A warrant would necessitate language narrowly construing what law enforcement could look for, as opposed to a fishing expedition.

So now that warrants are required, the question that remains is how can law enforcement circumvent the security protections that mobile phones come integrated with to protect the information thereon? At the inception of the smart phone, the security measures were limited to a passcode, a user provided set of four to six numerical digits that, when entered, provided access to the contents of the phone. As technology progressed, fingerprints and facial recognition have provided an even greater and more expedient way to protect a phone’s contents, albeit with a passcode back up option should the other methods fail for whatever reason. In recent times, once a warrant was secured, police would force an individual to reveal the passcode, perhaps invoking Miranda issues that have largely been struck down by as the passcode was not a statement against interest intended to be used against them in court. Ultimately, however, a person could refuse to state their passcode and little could be done to force their compliance. In order to combat the reluctant party, law enforcement turned to technology to break the encryption on mobile devices. At one point, a company developed a tool called GrayKey, that could actually break the encryption on the most secure of devices, the Apple iPhone. The box cost $15,000 and was sought after by the legal powers that be everywhere. Apple’s answer to GrayKey was to develop a new technology that turned off the data/charging port after one minute, disallowing access by anyone who did not have the passcode to access the phone. In a short matter of time, Apple made the $15,000 GrayKey an expensive paperweight.

The other methods of phone encryption, namely fingerprint and face id, provided another venue for law enforcement to gain access to a phone if the accused chose to remain silent. Police would simply force a detainee to use their fingerprint or face to unlock the phone and the owner would not have to say a word. This issue recently came to the United States District Court in the Northern District of California. In In the Matter of the Search of a Residence in Oakland, California, Case no. 4-19-70053, the government was investigation an extortion matter whereby the suspects were using Facebook Messenger to threaten the release of an embarrassing video of the victim. A search warrant was issue for the home and the phones of the suspects, but also request for the authority of the officers to compel any individual present to “press a finger (including a thumb) or utility other biometric features, such as facial or iris recognition, for the purposes of unlocking the digital devices found in order to conduct the search.” Id. The Court found that probable cause existed to search the premises, that the search warrant was over-broad in that it did not identify particular persons, as well as over-broad to search the devices of anyone present. The Court ruled,

Even if probable cause exists to seize devices located during a lawful search based on a reasonable belief that they belong to a suspect, probable cause does not permit the Government to compel a suspect to waive rights otherwise afforded by the Constitution, including the Fifth Amendment right against self-incrimination.^ The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V. The proper inquiry is whether an act would require the compulsion of a testimonial communication that is incriminating. See Fisher v. United States, 425 U.S. 391, 409 (1976). Id.

The Court observed the truth of the matter, that “technology is outpacing the law.” They discussed the passcode issue as the first hurdle to jump when accessing a phone,

Courts that have addressed the passcode issue have found that a passcode cannot be compelled under the Fifth Amendment, because the act of communicating the passcode is testimonial, as “[t]he expression of the contents of an individual’s mind falls squarely within the protection of the Fifth Amendment.” See Doe v. United States, 487 U.S. 201, 219 (1988) (Stevens, J., dissenting) (citing Boyd v. United States, 116 U.S. 616, 633-635 (1886); Fisher v. United States, 425 U.S. 391, 420 (1976)); see also United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (citing Doe, 487 U.S. at 208 n. 6); Com. v. Baust, 89 Va. Cir. 267, at *4 (2014). Id.

The Court extended the 5th Amendment protection of testimony against oneself past verbal and written communications to acts; however, distinguished certain acts whereby blood samples or submitting to fingerprinting, as those that make the “suspect or accused the source of the ‘real or physical evidence’ does not violate it.” Schmerber v. California, 384 U.S. 757, 764 (1966). In the case of mobile phones, the person is not the source of the evidence, the phone is. Forcing an act to reveal information from a phone is distinguished from forcing a person to reveal information about oneself. As in any case, the Court suggests that the government use warrants to obtain the information in a way that does not “trample on the Fifth Amendment.” In the instant case, the Court suggested that the messages could have been obtained by issuing a warrant to Facebook for the Messenger communications.

In an increasingly technological age whereby innovation is outpacing the law, courts are now tasked with increasing invasions on the rights of the people to their privacy. The impossible task is making rulings that foresee the future to avoid the incremental decisions that clog their dockets and take sometimes years to resolve. It is important to understand that this ruling is by a single Federal Court in California and that, although inevitable, the Supreme Court has yet to rule on this matter.

If you need legal representation or consultation related to a search of your cell phone, call us right now at 605-338-9711. Together, we can evaluate and discuss your legal rights and responsibilities and options.