Compelling Cellphone Passwords

Published 12/16/2019

Can the police force you to enter your password into your cellphone?

The typical scenario would include the government having seized your cellphone but they are unable to access it because its password protected. So, the government goes to Court to seek a lawful order directing you to enter your password into your phone to unlock it. The question at issue is whether your Fifth Amendment right against self-incrimination prohibits this action.

If you use a biometric password such as a fingerprint or thumbprint, then the police may use your prints without raising any Fifth Amendment issues. If you use other types of passwords then the analysis gets more complicated. Many courts have struggled with this issue and have come to different answers. Generally, the attempted search of a cellphone raises multiple issues such as Fourth Amendment search related issues, the technological barriers presented by encryption and possibly a Fifth Amendment barring of access.

Encryption allows people to ensure privacy in the content of their devices. The Fourth Amendment protects the content of your phone from unreasonable searches. The Fifth Amendment, right against self-incrimination, offers protections as well. However, the government may be able to force you to enter your password when they have independent knowledge that you know the password. This is called the foregone conclusion doctrine. It requires the government prove its knowledge but to what degree of proof is unclear.

This is an emerging area of the law and this specific issue has not been litigated extensively in Rhode Island Courts. When faced with a similar situation, assert your Fifth Amendment right and contact a knowledgeable criminal attorney on these matters.

Contact The Law Office of Matthew L. LaMountain for a free consultation.