Why you should always encrypt your smartphon
While police cannot force you to disclose your mobile phone password, once they’ve lawfully taken the phone off your person, they are free to try to crack the password by guessing it or by entering every possible combination (a brute-force attack). If police succeed in gaining access your mobile phone, they may make a copy of all information contained on the device for subsequent examination and analysis.
Last week, California’s Supreme Court reached a controversial 5-2 decision in People v. Diaz (PDF), holding that police officers may lawfully search mobile phones found on arrested individuals’ persons without first obtaining a search warrant. The court reasoned that mobile phones, like cigarette packs and wallets, fall under the search incident to arrest exception to the Fourth Amendment to the Constitution.
The Fourth Amendment’s search incident to arrest exception
Based on these precedents, California’s Supreme Court held in Diaz that mobile phones found on arrestees’ persons may be searched without a warrant, even where there is no risk of the suspect destroying evidence. Therefore, under Diaz, if you’re arrested while carrying a mobile phone on your person, police are free to rifle through your text messages, images, and any other files stored locally on your phone. Any incriminating evidence found on your phone can be used against you in court.
What about password-protected mobile phones?
Individuals can be forced to make an incriminating testimonial communication only when there is no possibility that it will be used against them (such as when prosecutors have granted them immunity) or when the incriminating nature of the information sought is a foregone conclusion. (For more on this subject, see this informative article forthcoming in the Iowa Law Review, also by Professor Gershowitz, which explores in great depth the uncharted legal territory surrounding password-protected mobile phones seized incident to arrest.)
What if you’re not a criminal and think you have nothing to hide? Why not simply cooperate with the police and hand over your password so that you can get on with your life?
For one thing, many Americans are criminals and they don’t even know it. Due to the disturbing phenomenon known as “overcriminalization,” it’s very easy to break the law nowadays without realizing it. A May 2010 study from the conservative Heritage Foundation and the National Association of Criminal Defense Lawyers found that three out of every five new nonviolent criminal offenses don’t require criminal intent. The Congressional Research Service can’t even count the number of criminal offenses currently on the books in the United States, estimating the number to be in the “tens of thousands.”