Madelyn DaleyAttorney at Law
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Do police have the right to view your smartphone data?

| Apr 6, 2020 | Criminal Defense |

Most people’s lives have dramatically changed since the invention of the iPhone and Android devices that hold our most intimate details, and gigabytes of other information. But the advance in technology has also led to these devices being used as potential sources of evidence for police.

If you are arrested or suspected of a crime, can the police force you to hand over that information? There is no clear answer as courts often rely on laws that were made well before smartphones existed. But it’s important to understand what rights you have to keep that data private.

How do police access your phone?

There are two main methods the government uses to obtain smartphone information, one where you have more control. These are:

Third-party companies: Most of us back up our phones on the “cloud.” Our information is stored elsewhere and, with the right court order, police and other law enforcement agencies can access your data without having physical possession of your phone. Police can get it from Apple and other companies.

· How are you protected?: You do have rights to keep that information private. The Fourth Amendment protects people against illegal search and seizure. Additionally, the Electronic Communications Privacy Act of 1986 forces law enforcement to get a search warrant, subpoena or other court order depending upon the information they seek.

Directly from your phone: There is a strong chance that police or others, won’t be able to get your phone data if your device is protected by a password, facial recognition or fingerprint unlocking features. They may try to crack those protections by using specialized tools if they have the necessary search warrant.

· How are you protected?: The Fifth Amendment says you can’t be forced to give police self-incriminating information. Civil rights advocates say that means the government can’t force you to reveal your device’s password, and most courts seem to agree with this, but it’s not always enough to keep your data private.

Laws are evolving over smartphone data

While there have been numerous cases involving law enforcement seeking to access cellphone information, most of the legal precedents cited are decades or centuries old. Judges are often forced to make judgments using decisions that were intended for access to paper documents.

Our smartphones hold massive amounts of personal data. With so much uncertainty over keeping your information from the prying eyes of others, consulting an experienced criminal defense attorney here in Illinois can help you keep your personal info private.