Cell phones can be unlocked in many ways these days -with a passcode, a fingerprint, an eye scan or even a facial scan. While the Supreme Court previously ruled that the police cannot search a phone without a warrant, they have now cannot force you to unlock a phone with your face, eye, fingerprint or other biometric data. La Jolla criminal defense attorneys have hailed the landmark decision and its implications for privacy.
Are Passwords and Biometrics Equal?
Previously, courts held that because cell phones hold so many details of a person’s life, a person could not be forced to give up their password to unlock their phone, even if the police had a warrant to search the phone. That’s because by forcing a person to unlock their phone, the person could potentially incriminate themselves -a violation of the Fifth Amendment. But courts still were allowing police to force people to use biometric data to unlock their phones -a paradox largely criticized by defense lawyers in Del Mar and the rest of the country.
The new ruling has distinguished that a locked phone is a locked phone and whether it is locked with a passcode or with biometric data shouldn’t make a difference.
Don’t Assume Your Data is Fully Protected
Of course, just because you can’t be forced to unlock your phone doesn’t mean your data is safe from the police. In fact, that’s part of the reason the court ruled against forcing people to unlock their phones -because police can get the information other ways. If you share your data with a third party, for example, you send messages through Facebook Messenger, that information can be subpoenaed by police (although, fortunately, cell phone location data is exempted from the third-party data rule.
Also, if you don’t lock your phone, your data is completely up for grabs if it is seized during a search with a valid warrant. Similarly, if you willingly unlock your phone for the police, you have officially consented to their search of your data, which is why you should never do so without first speaking with a criminal lawyer in Solana Beach.
Finally, if you are put on felony probation in San Diego County, the court will often require you to give up your rights to electronic privacy. These electronic privacy waivers are, however, being challenged by criminal defense lawyers as being unnecessary to superivise probationers.
If you believe your data was illegally searched by police, please bring this up with your Carmel Valley defense attorney. You can schedule a free initial consultation with Peter M. Liss by calling (760) 643-4050 or (858) 486-3024.
Creative Commons Image by Marco Verch