If you are arrested and police ask you to unlock your phone, can you refuse? Do they need a search warrant? What are your rights to privacy when it comes to your phone?

Do your rights to privacy include your phone?

It is no exaggeration to say that our lives are on our phones.

Smartphones contain an astonishing amount of data. If you give your passcode or fingerprint to unlock your phone, it might incriminate you. It is a violation of your fifth amendment rights for someone to force you to give testimony that would incriminate you.

Many people today lock their smartphones with either one or more of the following:

  • Number passcode
  • Letter passcode
  • Number/letter combination passcode
  • Fingerprint passcode
  • Face scan passcode

However, incriminating testimony covers testimony “of the mind” (such as words and thoughts) while physical components such as fingerprints or face scans are objective and physical. This is like the difference between finding keys and asking for the combination to a locked safe.

Police normally need to get a warrant to get a person of interest’s fingerprints or DNA.

What are current federal and state laws?

In 2014, the US Supreme Court ruled that police must receive a warrant to search for most cell phone location and data records. This ruling does not include the National Security Agency (NSA) data collection, especially those concerning threats to national security.

Around August 2019, a Fairfax County judge ruled that officials can legally compel you to give a fingerprint or use your fingerprint to unlock your phone, but cannot force you to give a passcode. The opposing legal team objected to this, but many other states agree.

This issue is a moving legal target. Legal authorities disagree strongly on what does and does not violate a person’s fifth amendment rights as they apply to a phone. If you are concerned about your phone and your privacy rights, it may be time to explore your legal options.