Our fears of the rise of a police-state are fed by the numerous stories in the media about TSA officials searching travelers’ cellphones and police officers taking protesters’ phones. It is now more important than ever to explore what rights we have to protect our privacy. Think about how much personal information most of us have on our cellphones: calendars, pictures, open access to email accounts, voicemail messages, phone call logs, internet search histories, open access to social media platforms like Facebook or Twitter, and likely even more personal apps or data. Do we really want a law enforcement officer fishing through all of that? Given all of the private information most of us now carry around with us, it is important to know our cellphone privacy rights.
Let’s start with the police. In 2014, in a case called Riley v. California, the United States Supreme Court unanimously held that unless they have a warrant, the police generally may not search the information on a person’s cell phone, even if they are arresting the person. The Court recognized some emergency situations in which a warrantless search would be permitted, but for the most part, cops and law enforcement agencies are not allowed to look at the information in your phone without a warrant or consent. This Court decision carved a new Fourth Amendment protection that’s different from the other protections upon arrest. When a person is arrested, the Fourth Amendment permits police officers to look in her purse or her pockets, as a matter of safety and preserving evidence. But the Court in Riley acknowledged that your cellphone is just different, and it is entitled to more protection.
The key thing here, though, is that you have to know that you have this right, because if you consent to the search, all bets are off. So if the police ask to look at your cellphone during a traffic stop, you need to know that you have the right to say no. If you agree and hand it over, you’ve waived the protection. But just because you have this privacy right does not mean that you are guaranteed the police will honor it. In case the police do not respect your privacy right, the safer way to protect your cellphone is to have a password for it, not a fingerprint lock. And keep in mind that the Riley rule only governs what is supposed to happen. The reality is that when an armed police officer demands that a person hand over his cellphone and access password, the law enforcement officer has all of the power, and people are going to need to make their own decisions about how to stay safe.
People have far less protections when it comes to border security rules. The Department of Homeland Security takes the position that the U.S. Customs and Border Protection (“CBP”) operates under totally different rules from other law enforcement agency. CBP agents assert that they can demand passcodes and search cellphones of citizens and non-citizens alike, without suspicion of any crime or wrongdoing. So, basically, they believe they can look at your cellphone whenever they feel like it. To refuse could mean being detained, being charged with a crime akin to obstructing the officers, and/or having the cellphone confiscated. As for protections, again having a pin rather than fingerprint lock arguably is safer (because you can argue that your right against self-incrimination protects you from being compelled to give up your password). But in reality, the safest things to do are to leave your phone at home, use an encryption program (and hope for the best), or remove all private things from your phone before traveling internationally.
In this era where the government is criminalizing protesting and demonizing huge swaths of our population, it is important to know how to protect our rights. That knowledge is indispensable when it comes to protecting the mounds of personal information we carry with us on our cellphones.