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Smartphone privacy rights in criminal trials

New technology has raised questions about a person's rights to privacy and against self-incrimination. An Indiana appeals court recently addressed this in an important criminal defense case by finding that police could not compel an individual to unlock her cellphone.

The defendant in this case was charged with invasion of privacy, intimidation and other charges relating to her alleged stalking. A court issued a warrant for her to unlock her iPhone7 but gave her the option to remove its passcode feature or change the passcode to 1234.

Her attorney refused this request and argued that the Fifth Amendment protections against self-incrimination supported her refusal to comply. He claimed that the police were asking his client to disclose her mind's contents. The prosecution, however, argued that it was a forgone conclusion that she knew her passcode and that there were incriminating text messages on her device.

The Indiana appeals court compared unlocking a cellphone to compelling a defendant to provide the combination to their wall safe. The Fifth Amendment prohibits both forced disclosures, according to the court. Unlocking and decrypting this data may also constitute testimony because it recreates the information sought by the police.

The court provided guidelines for police seeking this information. First, seeking data decryption should be limited because it is essentially recreating data.

However, there will be times when police will have a legitimate need for encrypted data. A warrant describing imminent crimes and other relevant information should support law enforcement requests for decryption in true emergencies. If there is no emergency, police should seek data from other sources.

One judge wrote this decision and another judge merely agreed with its result last month. A third judge filed a dissent. Accordingly, it is probable that the state Supreme Court will review this matter.

Legal representation should be sought when police seek access to personal information or property. An attorney may help assure that police comply with constitutional rights and mount a reasonable defense to a criminal charge.

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