In the past 10 years, smartphones have hit the scene and, basically, become the most important gadget in our lives. These mini-computers have grown faster than we’ve ever thought imaginable, and are only getting bigger. They have become so important, and so common amongst us, that they have been thrown into legal debate as well. It’s been kind of an open question whether or not law enforcement can force you to provide them with the password or PIN you use to unlock your phone, so they can retrieve any possible information they suspect to be in the phone. Previously, courts have ruled no, saying that having to provide your passcode is tantamount to self-incriminating testimony. Recently, though, an appeals court in Florida put forth a different ruling.
In this particular case, as Courthouse News reports, the phone is a significant part of the alleged crime in question.
As the story goes…
A woman was out shopping when she saw a man crouch down and aim a phone under her skirt, presumably to snap photos – it certainly wasn’t to find a better signal. She confronted the man, but he quickly ran out of the store. Police were able to track him down based on his car’s license plate number, however.
Our friends at The Consumerist report that when police finally picked up the suspect, and arrested him for voyeurism, he agreed that they could search his phone — an iPhone 5 that would, presumably, have any illicit photos he’d snapped on it. Before they actually could, however, he revoked consent and refused to tell police his four-digit passcode. The police eventually went and got a search warrant but, without the passcode, were still unable to search the device.
Initially, my thoughts went to what the FBI and Apple argued out this spring, in the wake of the San Bernardino mass shooting. Police had asked Apple to unlock the phone in question, but Apple refused claiming they would be infringing on privacy rights (as they would have also began a domino effect).
Law enforcement could have, in theory, attempted to guess the password — as there are only 10,000 possible combinations between 0000 and 9999, after all — but entering the wrong one more than 10 times will force the phone to permanently erase any data it has stored.
The two cases differ, however, as this suspect is still alive. In the mass shooting case, law enforcement could not even first try to recover a passcode from the suspect because the suspect was dead. In this case, investigators have a person to ask.
Initially, a trial judge denied the state’s motion to compel the suspect to give up his phone’s passcode. However, last week the Florida Court of Appeal’s Second District reversed that finding, determining that the passcode itself is not connected to any criminal data found on the phone.
“The information sought by the State, that which it would require [the defendant] to provide, is the passcode,” the opinions reads.
“The state has not asked [him] to produce the photographs or videos on the phone … By providing the passcode, [he] would not be acknowledging that the phone contains evidence of video voyeurism. Moreover, although the passcode would allow the State access to the phone, and therefore to a source of potential evidence, the State has a warrant to search the phone — the source of evidence had already been uncovered.”
Previous, conflicting, rulings have separated passcodes from now-common fingerprint-based phone locks. A court in Virginia, as well as another in California, ruled that basically, something you know is different from something you have or are. So fingerprints can be compelled for phone locks the same as they can be for, well, fingerprint checks, or in the same way as one can compel handwriting or voice samples.
“We are not inclined to believe that the Fifth Amendment should provide greater protection to individuals who passcode protect their iPhones with letter and number combinations than to individuals who use their fingerprint as the passcode,” the opinion continues. “Compelling an individual to place his finger on the iPhone would not be a protected act; it would be an exhibition of a physical characteristic, the forced production of physical evidence, not unlike being compelled to provide a blood sample or provide a handwriting exemplar.”
“This is a case of surrender and not testimony,” it concludes.
With all this being said, I have zero idea how they’re going to get beyond the point when the man who had zero regard for anything, taking an up-skirt picture, in broad daylight, of a woman shopping, simply says “I forgot,” when asked about his passcode…