As cell phones have evolved into devices containing all of our most intimate personal information, consumers have understandably become worried about the privacy of their data on these machines. There have been high-profile incidents of hacking where people’s credit card information, Social Security numbers, and other personal information have been stolen from cell phones and used without their owner’s permission.
Apple has responded to this by creating encryption software that makes it extremely difficult for hackers to break into locked iPhones. This has led to clashes with law enforcement agencies who want to access the locked iPhones of suspected criminals. Below, our experienced Salt Lake City criminal defense attorneys at Overson & Bugden explain when and how police can access your locked iPhone and how you can fight back against illegal or overbroad cell phone searches.
Can Police in Utah Access my Locked iPhone without My Assistance?
Police officers usually can seize evidence without a warrant if certain emergency circumstances are present. Police may seize evidence that is dangerous to the officer, such as a deadly weapon, or that is time-sensitive and may be destroyed before a warrant can be obtained. The U.S. Supreme Court, in 2014, in the case of Riley v. California, said that the information on phones cannot be seized in this manner because the phone does not pose a danger to the officer and the information on the phone can be preserved until a warrant is obtained. Police officers previously had the ability to access much of your cell phone data by requesting it from your cell phone service provider, such as Verizon or AT&T. These companies have access to your GPS location, which numbers you have been texting and calling, and more.
Apple, on the other hand, has been fairly steadfast in its refusal to cooperate with law enforcement agencies in their attempts to get past its encryption technology and get into a locked iPhone. This has been true even in cases where the law enforcement agency has a warrant. Apple has stated that it will not compromise its customers’ privacy and security by giving law enforcement information about its encryption policies that it could use in the future to access the phones of others not suspected of crimes.
This led to a protracted legal battle between Apple and the federal government. It started in full after the 2015 San Bernardino mass shooting. The perpetrator of that shooting died in a shootout with police and left behind a locked iPhone. Apple refused to assist the police in unlocking the phone so that they could scan it for information related to the shooter’s potential motivations. While the case played out in court, the FBI hired a third-party hacking service that got into the iPhone, and the case became moot. However, in 2019 the Electronic Information or Data Privacy Act was passed by the Utah legislature, making it a requirement in Utah that police get a warrant before getting information from cell phone companies.
How Do Police Break Into iPhones in Utah?
While many police departments have the ability to break into your phone, the tools to do so tend to be very expensive, and there is a chance those tools will not be successful. In sum, it is unlikely that police are going to be able to get into your locked iPhone without your assistance or without a warrant. Apple does not believe it is obligated to help authorities beat their own security systems, and while some third-party groups have the technology to get into locked iPhones without Apple’s help, this is a very complex and expensive process and is not always guaranteed to work.
While the technology exists to access iPhones without the owner’s assistance, the process of breaking into the phone is often expensive and time-consuming. Many of these phone cracking tools come from a company called Cellebrite, whose tools cost anywhere from $9,000 to $18,000, plus thousands more in annual licensing fees and costs. Phone hacking tools from other companies are similarly priced. Police departments that do not have these tools may still break into your phone by sending it off to another department or lab that does. Do not be alarmed, though. This widespread availability of phone-cracking technology does not grant the police ultimate power over your phone. Despite leaps in technological advancements and thousands of dollars spent by police departments, sometimes these tools simply can’t get past encryption codes and the police remain locked out of the phone.
Can Police in Utah Force Me to Unlock my iPhone if they Have a Warrant?
The police are entirely within their rights to make an application to a judge for a warrant to search the contents of your cell phone. If the warrant is granted, they can bring it to you and request that you enter your password to open the phone. However, they cannot physically force you to enter the password.
If you refuse to comply with the order, you are likely to be charged with contempt and held in jail until you comply or the situation is resolved. Additionally, a warrant allowing police to make you unlock your phone must be based on good probable cause. If the police need immediate access to your phone, they must also demonstrate why time is of the essence. This is a bigger hurdle for the police than you might think. Just because a phone is found at a crime scene or is otherwise connected to a suspect, it does not necessarily mean that phone contains any evidence of the crime. Police must convince a judge that the phone actually contains evidence relevant to the crime. The mere existence of the phone at a crime scene or in the possession of a suspect is not enough.
Can Police Use My Fingerprint to Unlock my Phone in Utah?
Once they have a warrant to search the phone, the police may also try to get into it by using the information they obtained during the booking process to try to trick the facial recognition software or fingerprint access software into allowing them into the phone. For example, if you use a fingerprint touch to unlock your phone, the police could create a mold of the fingerprint sample you provided when you were booked and use that to open the phone. Legal challenges to this method of accessing locked iPhones are ongoing.
Things like your fingerprints or scans of your face used for facial recognition software are known as your “biometric data.” Biometric data is essentially data or information about your body. Using your fingerprint or facial recognition technology to access your phone requires using your biometric data. Police may not force you to use a passcode to access your phone because a passcode is considered “testimonial,” meaning it is personal knowledge the police cannot force you to use to incriminate yourself. Biometric data, on the other hand, is not considered testimonial, so police may use it against you without your consent.
In 2019, another bill in Utah was introduced that would further limit law enforcement’s ability to access your locked phone without a warrant. As of now, police may use your own biometric information, such as fingerprints or facial scans, to get into your phone because biometric data is not considered testimonial in nature. However, a bill was introduced in the Utah legislature in March of 2019 that would stop police from using your biometric data to access your phone. The bill has yet to be signed into law.
Ways Police Can Break Into Your Phone in Utah
While it is true that the police cannot access the data on your phone without your assistance or without a warrant, a new study has revealed that police officers across the United States routinely access confiscated cell phones using newly available technologies. A study from a Washington, DC nonprofit called Upturn shows that 2,000 police departments throughout the country have the tools to access locked and encrypted iPhones and extract their data. This includes 49 of the 50 largest police departments in the United States. Even smaller local police departments that do not have these tools are able to send confiscated phones to other police departments or labs with these tools in order to break into the phones.
Do not be dismayed. Even though most police departments have access to tools and technology that allow them to more easily break into locked or encrypted iPhones, that does not mean they are legally allowed to do so. Phones today are far more advanced than phones of only a decade ago. Phones are not only tools to communicate, but they are mini computers that contain vast collections of private information about the owner. People store everything from personal photos to personal banking passwords on their phones. The law still seeks to protect people from unreasonable searches and seizures from the police. If you believe the police have accessed your phone without your consent and without a warrant, a Utah criminal defense attorney at Overson & Bugden can help you get any evidence obtained from your phone excluded from trial.
Even these new technologies have their limits. Phone companies like Apple are constantly improving the security measures used to protect the data on their phones. This means that the technology used by police to break into the phones must keep up or become obsolete. As long as Apple can stay ahead of the police, which it appears to be doing, the police are less likely to break into your phone and extract your personal data to use against you at trial.
How to Fight an Illegal Search of Your iPhone in Utah
Although there are laws protecting your digital data from unrestricted access by the police, it is not at all uncommon for police to simply ignore these laws and try to access your data anyway. One thing you should never do is consent to a search of your phone and willingly unlock it for the police without a warrant. Doing this will make it much tougher for a skilled Salt Lake City search and seizure defense lawyer like those at Overson & Bugden to challenge the search as illegal down the line. It is crucial to understand your rights as they pertain to your phone. It is in your best interest to consult with an attorney before ever giving any kind of consent to the police. Once consent is given, it is extremely difficult to exclude any information or evidence against you that the police may obtain.
Our veteran Riverton City criminal defense attorneys can challenge illegal searches of your cell phone or illegal access of data by police by filing what is known as a motion to suppress evidence. If such a motion is successful and the search is ruled invalid or illegal, any evidence that resulted from that search will be suppressed and cannot be used against you in future criminal proceedings. If police do find incriminating evidence on your phone, but we are able to suppress that evidence at trial, the evidence becomes inadmissible and the prosecution’s case against you is weakened. There are many ways to argue a successful motion to suppress, such as
- Showing that exigent circumstances did not justify the police going outside the warrant process,
- Demonstrating that the warrant was issued based on false or misleading information, or
- Showing that the police exceeded the scope of the warrant’s authority.
If the Police are Trying to Get into Your Locked iPhone, Call Our Utah Criminal Defense Attorneys
While the Apple corporation has been firm in its commitment to safeguarding its users’ data, this does not mean that information stored on a locked iPhone is safe from the prying eyes of police officers. The police will try to use other ways to get into a phone that they believe contains evidence of a crime, such as going through the cell-phone company or obtaining a warrant requiring you to enter your password. At Overson & Bugden, our criminal defense attorneys have years of experience fighting back against illegal and overbroad searches of our clients’ cell phones and digital data. We will work to get any illegally obtained evidence excluded and bring your case to a positive resolution. For a free consultation, call us today at (801) 758-2287.
