Fingers and Phones

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How many of you have Apple iPhones? Those of you who raised your hand, how many of you use a passcode to protect your data? And finally, those of you who are using a passcode, how many of you ALSO use Apple’s Touch ID, to allow you to unlock your phone with a quick read of your fingerprint? If this data is accurate, the average iPhone user unlocks their phone about 80 times a day, and 89% of users are doing so using their fingerprint reader.

Why ask these questions on a criminal defense attorney’s blog? Well, because I’m worried about you.

The reason I’m worried is that we keep a lot of private data on our phones. And whether it’s pictures, conversations, audio, notes, or anything else, these are things you want to keep private for a reason. What you wouldn’t want is a government stooge rifling through your personal data after a traffic stop or an arrest, or for whatever reason they may or may not give you as they seize your phone. Whatever they find, incriminating or not, they will want to use as evidence against you. But whether your phone is being seized for a lawful reason or not, you have a 4th Amendment privacy interest in the contents of your phone.

You also have a 5th Amendment right against self-incrimination. The government can’t force you to give evidence against yourself. Unfortunately, despite the very clear language in much of our Constitution and its Bill of Rights, our government has proven very adept at eroding those protections, year after year, decade after decade. It’s what they do. I’ve pointed out elsewhere why it shouldn’t be this way, and I’m not here to tilt at that particular windmill today. But I do want to orient you to the reality of law enforcement agents forcing people to give evidence against themselves, which happens every minute of every day across our free country.

Can cops take a sample of your blood or breath against your will? Yes.

Can they require you to read words on a piece of paper so that they can get a sample of the sound of your voice? Yes.

Can they make you give an exemplar of your handwriting, to compare with some suspect document? Yes.

Can they take your fingerprints? Of course.

Can they make you press your fingertip to the fingerprint reader on the phone they just took from you? Yes, they can, and they do.

What they cannot do, however, is force you to give them your passcode. Your passcode exists in your brain, and forcing you to disclose it to them is prohibited by the Constitution.

So what is the best practice for smartphone security from a criminal defense perspective? A couple of pieces of general advice:

1. Consider not using Touch ID at all. Instead, use a passcode that will be difficult for anyone to guess. And don’t tell anyone your code. Period.

2. If you DO use Touch ID, you still have to have a passcode anyway, so make sure it is one that you keep private and is difficult to guess. THEN, if you find yourself in a position where you might be pulled over or might have your phone seized from you by government agents for any reason, safely power your phone off as soon as you can. As always, obey lawful commands, and be careful not to make any sudden movements that might frighten a cop into drawing his weapon and emptying his magazine into you and anyone else in your car. (Wish I were being sarcastic, but unfortunately I’m talking about the real world, as I’m sure you know.) When it’s powered back on, the iPhone will require your passcode before it will allow you to use Touch ID, so your fingerprint cannot unlock it until the passcode is entered. A very handy feature.

The downside to option number 2, of course, is that you may not have a chance to power off your phone before it’s seized. This is a risk/reward analysis you’ll have to make for yourself.

So remember, be safe and vigilant, and always, always know your rights.