Even for the law-abiding among us, it can be unnerving to imagine a police officer or other government personnel rifling through everything on your phone.
“Your phone is a window to your soul,” said Adam Schwartz, privacy litigation director of the Electronic Frontier Foundation, a consumer advocacy group.
That’s why the Supreme Court enshrined special constitutional protection for your phone. The details, though, are legally unsettled and complicated.
Tensions over phone data have flared in the criminal corruption case against New York Mayor Eric Adams. Prosecutors say Adams wouldn’t disclose the password to unlock his personal phone. Adams has pleaded not guilty and sought to dismiss parts of the case.
I’ll explain what the law says — and doesn’t — about when government authorities can search your phone, and suggest common sense measures if you want to assert your rights.
Your legal rights
Government representatives, including police, in most cases need a warrant signed by a judge to seize your phone and search its contents.
Even if you’ve been arrested, law enforcement personnel can take your phone, but still need a warrant to access what is on the device.
(If you give permission to hand over your phone and access its contents, police don’t need a warrant.)
U.S. border protection agents, including at airports, typically have more legal leeway to search your phone. Read more about that here.
But the law is murky about whether you can be compelled to unlock a phone seized by law enforcement.
Even when there’s a search warrant for your phone, courts have been split about whether you can be legally forced to unlock it.
Some judges have said being required to unlock your phone for government authorities is analogous to being forced to testify against yourself, which is protected under the Fifth Amendment. Other courts have said there’s no such protection for your locked phone, Schwartz said.
Still other courts have found you have Fifth Amendment protections if your phone is locked with a passcode, but not if it’s locked with a face or fingerprint scan.
If the police ask for your consent to search your phone without a warrant, what should you do?
Defense attorneys generally recommend that you politely refuse, but also consider whether it’s practical and safe to do so.
Jerome D. Greco, head of the digital forensics unit at the Legal Aid Society in New York, advised saying, “I do not consent to a search of my phone,” and ask to consult a lawyer. Schwartz said you can also say, “What’s inside my phone is private.”
Though law enforcement cannot search your phone or require you to unlock it without a warrant, they can make it uncomfortable to say no, said Brett Max Kaufman with the ACLU’s Center for Democracy.
For example, if you’re stopped for speeding and an officer asks to look at your phone, Schwartz said refusing could make the traffic stop longer and confrontational. In extreme cases, he said that could put you in physical danger.
Use your best judgment about the benefits and risks of asserting your legal right to keep your phone information private.
What are practical steps to enhance your legal protection from government searches?
Albert Fox Cahn with the Surveillance Technology Oversight Project said partly because your legal rights are clearer when your phone is locked with a passcode, he advises people who are concerned about police accessing their devices to at least temporarily lock it only with passcode.
Cahn suggested you might consider turning off the face or fingerprint unlock option in special situations, like when you cross the border or attend a protest.
On iPhones, you can temporarily stop the Face ID scan from unlocking your phone. Press and hold the side button and one of the volume buttons at the same time for a couple of seconds. When you see an on-screen option to place an emergency call, press the side button again.
Your phone will lock and you’ll need to type the passcode to unlock it.
Could police hold your phone to your face to unlock it without your permission?
“Most courts have held yes, they can,” Greco said, if law enforcement has a search warrant or your device is legally seized another way.
The face-unlocking move might not be legal without a warrant, but Cahn says he knows of cases in which police did it anyway.
Could the police grab your phone out of your hand while it’s unlocked?
That’s also probably legal, Greco said, assuming they have a court order. (Not everyone agreed this would be legal.)
In 2013 when FBI agents arrested the person who was later convicted of operating the online drug bazaar Silk Road, they surprised him at a public library to seize his laptop before he could lock or delete its contents.
Can police search phones even without the owner’s permission?
Yes.
Law enforcement and prosecutors with court orders can use technology to break into locked phones. The FBI used such technology to access the content of a phone used by the man who tried to assassinate former president Donald Trump at a July campaign rally.
This phone-cracking technology can take time and cost a lot of money and it might not work for all phones.
Prosecutors say they haven’t gotten into Adams’s locked personal phone that they obtained with a court order nearly a year ago.
Prosecutors alleged that Adams said he forgot the passcode and couldn’t provide it to the FBI. Prosecutors suggested that was a bogus excuse. A lawyer for Adams didn’t respond to a request for comment.