Of course, as lawyers and appellants everywhere, are well aware, the legal system moves at a snail’s pace. Thus, topics of importance today, are merely memories by they time they cross the Supreme Court’s threshold. Unfortunately, this means that issues like whether copyright laws protect the birthday song, take years to resolve.
Such is the case with password protection on mobile devices. The technology is evolving faster than the legal system can accommodate.
My position remains that without a warrant, government agencies shouldn’t be able to access the contents on any password or fingerprint protected mobile device. Additionally, I shouldn’t have to disclose or use my passcode to unlock a device at the government’s request.
Heading into muddy waters
Our company provides our managers with mobile devices, so this is a topic I’m very much interested in. And while I don’t expect federal or state agencies to storm in, seize our employees’ phones, and being trying to acquire information, I can forsee instances where employees do dumb acts to cause increased law enforcement scrutiny.
The problem is, there’s currently no clear view on whether the Fourth — and sometimes the Fifth — Amendment applies to passwords, or patterns, or even fingerprints protecting mobile devices also precludes warrantless searches. There are, to my knowledge (and limited search on the topic; any law review articles on the subject?), very few cases that address issues.
Recently though, we’ve seen a couple cases arise. The first is a case in Virginia that held passwords are protected, but not fingerprints. Thus, the suspect didn’t have to give a password, but he did have to submit his fingerprint to unlock the device. (If I was an iPhone or Android device owner with a fingerprint unlock, I’d switch.) The second case comes out of Pennsylvania’s Eastern District, and essentially holds that the Fifth Amendment protects a person from providing a mobile device’s passcode if the government is unaware of specific information on the device. (Read the follow-up piece on why the conclusion might be right, but the analysis is wrong.)
Passcode, pattern, pin, or fingerprint? Now what?
First, let me assure you that I am not an expert in Fourth or Fifth Amendment law, but I do find these issues fascinating. Based on Professor Orin Kerr’s analysis, I presume that most courts will fall in the “no protection” category for most cases, and that “we know you owned the device, now enter the code,” will become the norm for law enforcement interrogations.
What are your thoughts? Is the Fourth Amendment sufficient enough protection from law enforcement searches? Or does the agency’s “knowledge” factor preclude all Fifth Amendment protections? In other words, are we screwed either way?