Passwords and the Constitution

Which Amendment to the Constitution covers your passwords and the PIN lock on your phone? If you’re the numerous journalists I’ve seen attempt to tackle this subject, most recently Rachel Blevins with the Free Thought Project, it’s the Fifth Amendment protection against self-incrimination.

A password, pass code, or PIN are designed to prevent unauthorized intrusion to an account or device. In this vein, they’re similar to the locks, doors, and windows on your home or apartment. They are also designed to prevent unauthorized entry to your home.

The Fourth Amendment to the Constitution states that you have such a right to privacy:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If a peace officer, as part of an investigation, wants to search your phone, you have two options: demand a warrant, or provide access. If they have a warrant, however, or the Court directly orders you to provide that access, you must comply. Just as you’d be under obligation to provide access to a specific area of your home or vehicle upon presentation of a search warrant.

Your protection against self-incrimination means you cannot be compelled to provide any statements to the police. I’ve said previously that the right to not speak is so sacred that police have to inform you of it before interrogating you. But your phone isn’t speech. It’s physical evidence. Just as the files on your computer’s storage, or in any cloud storage accounts you have are also physical evidence.

And obtaining physical evidence that is not in plain sight requires a search warrant.

This means if police want to search your phone, you can demand a warrant or voluntarily surrender it — note: do not do the latter, EVER! Now if you don’t have a PIN lock or other type of intrusion prevention on your phone, that doesn’t mean police can willy-nilly search it. They still need either your permission (again, NEVER give it) or a warrant.

And if you have a PIN lock on your phone and the police present a warrant, you must unlock your phone or provide the PIN lock to police.

Here’s the other reason to demand a warrant: in stating a phone is to be searched, the warrant must still describe “the … things to be seized”. In other words, if they’re looking for e-mails, they can only look through your e-mails. Same with voice mails, photos, or what have you. The warrant must still be specific to what they want to find, and they can’t just go on a fishing trip through your digital data.

Unless you voluntarily surrender your phone. Then unless you document specific permission you are granting the police with regard to it, they can and will search wherever they want on your phone.

But again, if the police have a warrant, you must provide access to the phone. This includes the PIN lock code if you have the phone secured in that manner. The Fourth Amendment is what protects you on that regard, not the Fifth.