By Marc Emden, Esq.
Most people protect their phones by using cellphone passcodes. But what if police seize your phone and demand that you provide them with the passcode, do you have to give it to them? court have not yet answered this question definitively, but the answer is likely “no,” because this forced revelation would violate the Fifth Amendment.
However, the existence of a passcode alone will probably not deter the police. They can still serve a search warrant on Apple or Google requesting the passcode. While it’s unclear whether Apple or Google has ever provided the police with these passcodes, there are a number of cases in which these companies have turned over the contents of the phone (without reveling the passcode). Furthermore, if your phone’s data is backed up in the cloud, the search warrant can target that back-up data directly, without asking for physical access to the phone. Police can also try to hack into your phone once they are lawfully in possession of the device.
While it is a crime to hinder a police investigation, some have tried to find peace of mind by wiping their phone (in person or remotely). iPhones, for example, can be set to automatically wipe all data after 10 incorrect passcode attempts have been made. This, you may think, will prevent the police from “brute forcing” your passcode for fear that once they guess the passcode, they will find an empty phone. However, wiping the phone simply by restoring it to factory settings does not actually remove any of the data. The process only removes the directory, or list of “addresses” of the data, but leaves the actual data completely intact on the phone. Read our full article about phone data to learn more!