Google v. Government: Cell Phone Manufacturers Increasingly Resistant to Unlocking Suspects’ Personal Devices for Law Enforcement

At this point in the age of the internet everyone has heard of the horrors that can befall a person who doesn’t carefully guard their digital information. Pictures on Facebook have cost people job opportunities, credit card transactions have revealed infidelity, and YouTube videos have led to criminal charges. But what happens when the information isn’t on the internet – but on your phone?

Requests under the Freedom of Information Act by The American Civil Liberties Union have revealed that law enforcement officials will often ask cell phone manufacturers to aid in a criminal investigation by unlocking a suspect’s password protected phone.

According to a recent Wall Street Journal article, law enforcement often has the tools to access information stored on a password protected phone without the help of the owner or manufacturer. In circumstances where they can’t, however, the law surrounding access to the information is grey. Suspects have a Fifth Amendment right not to incriminate themselves, so if a suspect feels information on the phone may be incriminating they have an affirmative right not to provide the password to police – even if the police have a subpoena. That’s when law enforcement often turn to manufacturers.

The “Third Party Doctrine” allows police to obtain information from a third party, putting all information stored on “the cloud” clearly within reach of police. But manufacturers unlocking suspects’ password-protected phones (which often include call logs, emails, photographs, and browsing history) enters a murky area between a search and a wiretap.