The Fifth Amendment to the United States Constitution protects a person suspected of a crime from incriminating himself. The United States Supreme Court has ruled that the Fifth Amendment protects you from being forced to give up information in your head that is “testimonial”, but what that actually means in practice isn’t so simple. And it is certainly not simple when it comes to cellphones.
Whether a police department or CID, NCIS or OSI need you to unlock your phone in the first place in order for them to access it varies quite a bit. Almost all police departments and every military investigative office has software made by an Israeli company called Cellbrite. This software allows them to easily bypass the password on most Android phones and older iPhones. iPhones from the 5s on have something called a “Secure Enclave” that cannot be bypassed (in one case Cellbrite was apparently able to bypass it on an iPhone 5s for a fee of $900,000 and likely also destroyed the phone…making it unusable in court. Cellbrite has said they can also unlock the iPhone 6 for a large fee but it has to be sent to Israel and again would likely be unusable in court). They do not claim to be able to unlock iPhones later than the 6. If you are using a short passcode, theoretically they could run a program to try every passcode until works. However, iPhones and many Android phones are set so that after a few wrong attempts they have to take 24 hours between each attempt to enter a passcode. In fact, on iPhones and some Android phones you can go to settings and set it to erase the phone after ten wrong attempts to enter the passcode.
Most sources that you will read online will tell you that you cannot be forced to give up your passcode. This is true in some American courts, but not all. Some American courts have recently ruled that you can be forced to give up your password. Most American courts haven’t dealt with this issue at all. If a civilian court tries to force you to give up your passcode they will give you an order and if you refuse they will find you in “contempt of court” and send you jail. The interesting thing about being in contempt of court is that it is technically not a crime, it is a mechanism to try to force you to comply with the court’s order. And they can’t send you to jail forever (but it could be a number of years before they give up). Now obviously, someone who is accused of very serious crimes that is facing many years in jail may rationally prefer to be in contempt than to be convicted. For example a Philadelphia cop who is suspected of having child porn on an encrypted hard drive has refused to give up the password. He is been in jail for over a year on contempt of court. But he would be facing probably much more jail time if there actually was child porn on the hard drives and they could unlock it.
Finally, only a few civilian courts have ruled on the issue of whether a fingerprint unlock or facial recognition unlock of a cellphone is protected by the Fifth Amendment. Most, but not all, have said that fingerprints or your face are not testimonial and that you can be ordered by a court to provide the fingerprint. But remember, if you are a service member facing a military investigation, you will not get an order from a court to unlock your device (whether by password, fingerprint or your face), instead your commander will order you to unlock it. Refusing to obey a lawful order is a violation of Article 92, UCMJ. The question is whether this is a lawful order. We will discuss that in Part II of this post.
