For many people, much or all of their lives are documented on their cellphones, making those devices a likely target for law enforcement agencies that believe they have committed a crime. But it may not be as simple as police or the FBI getting a warrant to get that information.
Androids and iPhones hold many gigabytes of potential evidence, but whether the government has a right to access it largely depends upon a mishmash of court decisions and laws that were made well before the technology was widely used.
How can the government get information from your phone?
While you should contact an experienced criminal defense attorney if law enforcement requests or orders you to provide phone data, here are a couple of questions to consider:
Can the government get your third-party data?
- Short answer: With the right court order, probably.
- Long answer: Depending upon what they’re looking for, they may not need to possess your phone physically. If you back up data on the cloud, they may be able to get it from Apple or others. However, you do have rights guaranteed by the Fourth Amendment against illegal search and seizure and other protections under the law.
Can the government access personal data on your phone?
- Short answer: If you have a passcode or use facial recognition or biometric features to unlock your device, there’s a chance they can’t, but it’s not guaranteed.
- Long answer: A lot of personal information is not backed up on the cloud, so the only place police can access it is on your device. If your phone is not password protected, or they use specialized password cracking tools, and they have the necessary search warrant, they may be able to access it. However, the Fifth Amendment could keep it from their prying eyes.
Rulings over phone data are evolving
While there are many recent rulings over phone data, some legal arguments harken back to cases that are decades and even centuries old. Some judges cite laws that relate to information on paper for rulings on devices that hold massive amounts of data.
While you may not be able to control what law enforcement or others can do with that data, now or even after you die, consulting an experienced defense attorney is an essential step to protect your rights if the government orders you to turn over your phone.