Can the police demand that you unlock your cellphone?

December 1, 2013
311 Views
Passcode needed

Passwords or fingerprint readers can change the debate on digital privacy.

The Supreme Court will soon decide whether to hear several related cases regarding the rapid advances in technology, a topic that our nation’s Founding Fathers certainly could not have predicted.  The first case, U.S. v. Cotterman, deals with the authority of police to search your technology.  Many states do not currently require a warrant to search your cellphone, however others do.  Circuit Justice M. Margaret McKeown, who wrote the opinion in Cotterman, shared, “The present case illustrates this unique aspect of electronic data… It is as if a search of a person’s suitcase could reveal not only what the bag contained on the current trip, but everything it had ever carried.” This week, the Court may also announce if it will hear Wurie v U.S., which involves obtaining a warrant to search a suspect’s call log. Another case currently before the Massachusetts Supreme Court questions whether police can demand a password for a phone or technological device that is locked.  In the past, courts have ruled that, under the Fifth Amendment, an individual does not have to provide the police with their password.  Hanni Fakhoury, an attorney with the Electronic Frontier Foundation, explained, “We’re getting new permutations of this issue because the iPhone came out, what, two months ago, and everyone’s using fingerprints to lock their phone… The new technology is going to be unlocking the phone with your eyes, or who knows what.  And again, the courts are moving slow on this.”  Lastly, POLITICO’s Tal Kopan, highlights another pressing issue: tracking a person’s location.   Last year, the Supreme Court ruled in U.S. v. Jones that police cannot utilize a GPS tracking device on a car without a warrant.  They reasoned that such a tracking device was akin to trespassing.  Such logic may not hold when considering how ubiquitous cellphones have become.  More importantly, understanding the rapidly changing landscape for digital privacy may not be the strength of many older federal judges.  “Justice Kagan a couple of weeks ago was talking about how the Supreme Court struggles to use email, which is kind of funny but kind of scary at the same time,” Fakhoury shared.  “We had a case involving a guy charged with cyberstalking on Twitter, and we had to explain to the judge in his 60s what Twitter was.”

What do you think about the courts not being able to keep up with rapid technological advances? Do you think there is a solution?

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