What’s what: KNOW YOUR PRIVACY RIGHTS.
So, we’ve covered the basics of what the government can learn about you without even laying their hands on your phone, but say they actually do. Then what? Is that even allowed? Do warrants apply to phones too? Here, I will do my best to explain what you can and should do in situations where you feel your electronic privacy might be in jeopardy.
This post will be split into three sections, before the search, during the search, and any complications that may arise during the search.
Firstly, the best thing you can do is not consent to a search, even if you have nothing to hide. (Though, who are we kidding, everyone has something to hide right?) When you consent to a search, the police no longer need a warrant to look through your devices. If you don’t consent and ask for a warrant, the police might drop it altogether. Either that, or they give you a warrant, and you give them your devices. You can limit the scope of your consent (“Don’t look through my social media”) and even revoke or take it back after the officers begin searching (“I changed my mind, please give me back my phone”). But by then, it might already be too late. That’s why you should refrain from giving your consent in the first place.
Next, remember that the police can’t just barge into your house and search through your phone, laptop, or any other device. Step outside your house and close the door behind you. If they ask to “interview” you, simply say, “Sorry officer, I do not want to speak with you. I do not consent to a search. I want to speak to my attorney.”
Besides attaining consent, the police can also carry out a search if they have probable cause to believe there is incriminating evidence in the house or on an electronic device that is under immediate threat of destruction, according to Ker v. California, 374 U.S. 23, 39 (1963).
The rules around who is allowed to consent to a search can get muddled. The nature of the language is vague, saying that anyone who has “control” over it can give consent. This opens the door for police to ignore whoever is not consenting to the search and return without a warrant if they know that person is not there and there is a consenting third party. It’s a good idea to sit everyone is the house down and agree that none of you should agree to a search by law enforcement.
“But, The Wiretappers,” you protest, “What if they already have a warrant? Will they go through all my stuff and find my pirated copy of Legally Blonde 2? I swear I only downloaded it ironically!”
Don’t fret, my pretties! You want to first validate the warrant, making sure it has the correct name of the person arrested or the correct address of the specific place to be searched, a list of the items that can be seized or taken by the police, the approving judge’s signature, and a deadline for when the arrest or search must take place.
The police cannot take anything else other than what is specifically stated on the warrant. That is, unless the warrant asks them to find “evidence” and they believe they can find evidence on your computer or phone, they see something obviously illegal on your laptop screen (like, say, a pirated copy of Legally Blonde 2), or they think there is something incriminating on your computer that is going to be destroyed imminently.
You are of absolutely no legal obligation to assist the police in their search or answer any questions they have while it is taking place. Do not physically interfere with their search, even if you do not consent and they are doing it on the basis of a warrant, or if they have neither your consent nor a warrant and are searching anyway. In that case, write the names and badge numbers of all the policemen involved and call an attorney immediately.
Do not answer questions. In fact, it is best to stick to, “I do not wish to speak with you. I do not consent to a search. I wish to speak with my attorney” so nothing can be held against you in a court of law. If you want to answer their questions, though, it is best to be completely truthful. Lying to an officer is a crime in most contexts.
“Oh, The Wiretappers, you naive bunch,” you protest one again, “I have encrypted everything on my computer. Can’t let the NSA learn about my Legally Blonde Tumblr fan blog. Those silly policemen won’t even be able to get into my computer.”
The policemen might not be able to get into it, but they can take your devices to another location and search it there, where experts can help them decrypt it. They can also make copies of files on your device and transfer it somewhere else to inspect more thoroughly at a later time.
However, you DO NOT HAVE TO HAND OVER ANY PASSWORDS OR ENCRYPTION KEYS TO LAW ENFORCEMENT. Since courts have generally accepted that telling the government a password or encryption key is considered a “testimony”, The Fifth Amendment protects you from being forced to give them up as it protects from self-incriminating testimonies.
A police officer cannot force or threaten you into giving up your password or unlocking your electronic devices. Every arrest situation is different, so it is generally a good idea to contact a lawyer to help sort through your unique circumstances. The police cannot coerce you to give up your password, but they can still pressure you by detaining you. You may even go to jail rather than being immediately released if they think you’re refusing to be cooperative.
You’re right. But we cannot stress how important it is to know this stuff. In this era, we are lucky enough to be able to practise our freedoms of speech and expression every single day using those rectangles in our pockets, reaching people far and wide. Much like what we’re doing here on this very platform. But with great power comes great responsibility, right?
