Can I be forced to unlock my phone?
May 11, 2020Servicemembers under investigation often wonder, can I be forced to unlock my phone? The answer is complicated and explained here by Attorney Matthew Barry.
First of all, if you are wondering this (can I be forced to unlock my phone?), then it is time to consult with an experienced military attorney. Steps taken early on during an investigation, and before a Servicemember is interviewed, can save their career.
To begin with, a Servicemember's phone can only be taken ("seized") pursuant to a proper authorization by a Commander or a Judge/Magistrate. If an investigator, member of the Command, or other authority asks a Servicemember for his/her phone, he/she should always say "No, I don't consent to you taking my phone." If the investigator or member of the Command presents a seizure authorization signed by a proper authority, then the Servicemember in question has no choice but to hand over their phone. A Servicemember in this situation should be very clear that while they are complying with the seizure authorization, they are not consenting to it. This has important legal consequences later on.
Once a Servicemember's phone is seized, the question of unlocking it comes into play. As the law currently stands, a Servicemember has no privacy right to their fingerprints or face. Therefore, a Servicemember can be forced to unlock their phone if facial or fingerprint recognition is enabled. If the Soldier refuses, they will be given lawful orders until they comply.
However, if a Servicemember only has a pin code on their phone, they CANNOT be forced to give it up. A Servicemember has a constitutionally protected privacy right to their pin code. If an investigator/member of the Command asks a Servicemember for their pin code, he/she should say "no, you can't have it." If ordered to give it up, this is not a lawful order. A Servicemember cannot get in trouble for refusing to provide their pin code.
Although it varies based on the phone and the length of the pin code, investigators are usually not able to get into a phone without a pin code (if facial and fingerprint recognition are disabled). Companies like Apple really value privacy and design their phones so law enforcement cannot get into them without the proper authorization. See an example here.
What all this means is that if you are under investigation, or suspect you will be at some point, then you should disable facial recognition/fingerprint recognition on your phone. Furthermore, chose a long pin code and refuse to give it to anyone, even if you are ordered to do so. If you do this, you may be saving your career.
Sometimes Servicemembers think that if they delete the evidence they are concerned about on their phones that the cops will never be able to find it. This is not true. Sometimes, deleted evidence on phones can be recovered. When this happens, it looks even more damning that the suspect attempted to delete it.
Again, if you are asking yourself this question (can I be forced to unlock my phone?), then it is time to consult with a military lawyer.
This article was written by Attorney Matthew Barry.