Almost everyone has a smartphone these days, and most people who are a suspect in a criminal investigation have used these devices. Anyone who is wondering whether law enforcement can hack into their phones and find evidence against them will discover that the answer is complicated.
Your phone might be a treasure trove of evidence against yourself or someone else, and the data within that device is obviously something you want to protect. Keep in mind, however, that this data might be accessible outside of your phone. Data can live on in third party apps — such as Facebook, Twitter, and WhatsApp — or programs you use to backup your data, like iCloud. Police may be able to access these programs without even touching your phone. However, you do have rights regarding what information you must hand over to the police.
Personal data you keep on your phone that can’t be found anywhere else may be protected, but that protection is not guaranteed. Courts across the country have been working to resolve the long-time debate about whether police can force suspects to hand over information that could incriminate them by unlocking their phones.
If you’re concerned that police have wrongfully obtained information by forcing you to unlock your phone during a criminal investigation, you deserve legal protection from a knowledgeable criminal defense attorney. The attorneys with The Umansky Law Firm aggressively fight police misconduct and may be able to argue that any evidence against you was illegally obtained. You should take action immediately to secure your defense.
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For the most part, yes they can. Depending on what they seek, they may not need physical control over your device. Much of your phone’s data is stored in other places that law enforcement can access. For example, if you back up an iPhone regularly via iCloud, the police may request access from Apple. If they want to get information from your direct messages on Twitter, they can appeal to Twitter. All they need is a court order.
As long as police take legal measures to receive data about you, they can do so. However, you do have rights protecting you against search and seizure through the Fourth Amendment to the U.S. Constitution. You also have rights under the Electronic Communications Privacy Act and the Stored Communications Act.
So long as police go through the proper channels to get third-party data about you, they can pretty much obtain any information they request. The Electronic Communications Privacy Act of 1986 dictates what law enforcement must obtain in order to access data. This may be a warrant, subpoena, or court order depending on what they need.
Title II of the ECPA is the Stored Communications Act. This provision protects the privacy of the contents of files stored by service providers and any records held by the subscriber. This measure requires service providers — like WhatsApp or iCloud — to receive a court order before they may turn information about users over to law enforcement. So, with the right documents, the government could get a hold of pretty much anything about you that a third party possesses.
According to Andrew Crocker, a senior staff attorney for the Electronic Frontier Foundation, users do not have a Fourth Amendment interest in messages that have been received by another user. This means that if an individual that sent texts to you cooperates with the police, anything you sent them can be turned over to law enforcement without a warrant being needed. If you send a friend messages that contain incriminating evidence, and that friend chooses to protect you, all the police need to get the data they want is a warrant.
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It all depends on various factors, including whether your phone is passcode-protected or can be unlocked with your fingerprint. If your phone does not have a password or law enforcement can get into it with an app that cracks passcodes with a search warrant, then your personal data is theirs for the taking. If your phone is locked with a passcode and they can’t get into it, you may be protected by the Fifth Amendment.
The Fifth Amendment states that you can’t be pressured to give testimony that may work against you in court. In these cases, testimony refers to the contents of your own mind, such as a made-up passcode. While most courts agree that police cannot force people to give up their passwords, the foregone conclusion exception has become a point of contention.
This is the notion that a defendant’s testimony is not self-incriminating if it reveals information the government already knows and the government can prove prior knowledge. In this situation, the defendant’s testimony reveals nothing new, so it’s a foregone conclusion.
When it comes to phone passwords, the government has argued that revealing the passcode only shows them that the phone belongs to the defendant. If the government has enough proof that the phone belongs to the defendant, it’s a foregone conclusion that the defendant also knows the phone’s password.
Since the 1976 case Fisher v. United States, lower courts have been left to interpret passcode cases without further guidance from the high court. Ultimately, it’s expected that the Supreme Court will become more involved in these cases. For now, it makes sense to protect your phone with a passcode. There have been cases in which law enforcement has been able to use people’s own bodies against them, so it might not be as effective to protect your phone with your fingerprint, facial recognition, or iris scanners.
If you’ve been accused of committing a misdemeanor or felony in Florida, police may try to retrieve personal information from your cell phone to show probable cause for an arrest. The prosecution may also seek access to this data to build their case against you. When you’re unsure of how to navigate the criminal justice system, you can trust the defense lawyers with The Umansky Law Firm to protect your rights.
Our lawyers have more than 100 years of combined experience defending people from all walks of life against criminal charges that stand to alter their lives completely – from DUI and drug charges, to defenses of assault and domestic violence, to gun charges and sex-based crimes. We firmly believe that everyone deserves a second chance, including you. Call for a free consultation or complete our contact form to be in touch with an attorney 24/7.
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