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By Kirsten Prylinski

The law does not allow police officers to force suspects to provide their passcode, pin, or password to unlock their phones. However, the law does not expressly say what is allowed by police officers when it comes to actually use a suspect’s finger or holding the suspect’s phone to their face to gain access to their phone. Digital searches raise a serious privacy concern that did not use to exist in the era of physical searches. Even the most thorough of pat-downs of a suspect could not reveal nearly as much as the information stored on their cell phones or smart devices. A recent ruling by the U.S. District Court for the Northern District of California forbids all of these unlocking methods and places them on the same playing field as a way to protect people’s privacy.

The ruling comes down after a Facebook extortion case in which the suspect attempted to blackmail the victim, threatening to release embarrassing photos of the victim to social media unless the victim paid. Despite having a warrant to access the suspect’s device, the suspect refused to unlock the phone with the face identification or fingerprint. The police also wanted to open up other phones on the premise via facial recognition, a fingerprint, or an iris. The magistrate judge noted that while the police had probable cause to search the phone, they did not limit the scope of their warrant to a particular person nor a particular device. The judge ruled that since opening the phone would be a testimonial on the part of the suspect, it would be a violation of the fourth and fifth amendment rights to force a suspect to incriminate themselves and grant access to their phone for an investigation.

This landmark decision has many feeling like the law is finally catching up with technology. Since the proliferation of smartphones and biometric security, including fingerprints, faces, and irises, police were allowed to force a suspect to unlock their phones. There has been much discussion about technology outpacing the law, and the judge, in this case, has made a point to distinguish that there are other ways that the government could get access to relevant data. For example, in the present case, the government could ask Facebook to provide the messenger content. Facebook has previously stated that it was willing to handover messages in a significant number of cases. The problem would come with companies such as Apple. Apple’s deleted text messages are scrambled in a way that makes it nearly impossible for law enforcement to piece together a conversation. So, though there are still ways in which the government can collect information without violating a suspect’s constitutional rights, this new potential precedent could significantly slow down investigations.

While this ruling is a victory for citizen’s, such a ruling seems to have been anticipated by the police, who have found potential loopholes. GrayKey, for example, is a device available to law enforcement that can beat the passcode on an iPhone. Officers connect the phone to the lightning cable and GrayKey can get access to the phone. What police did not anticipate was Apple’s willingness to fight back in order to protect their user’s privacy. With the new iOS 12 update, the lightning port locks the device for anything other than changing while the phone is secured. This could possibly mean that law enforcement could be deadlocked without a way to access phones should other courts follow the precedent set forth by the California District Court.

It is still unclear how this new ruling will affect the decisions of other courts. The case continues to pose the question of whether the law is being outpaced by technology. Should this law be adopted nationally, police will have a wrench thrown into their investigation techniques, especially as it relates to technology. While the government does have a substantial interest in protecting the privacy of citizens, some balance will need to be stricken between the interest of privacy and the burden placed on investigators and police as more and more cases involve evidence located on cell phones.

Student Bio: Kirsten Prylinski is a second-year student at Suffolk University Law School, focusing on criminal law. Prior to law school, Kirsten attended Auburn University where she received her bachelors in Business Management and a double minor in Political Science and Psychology.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.



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