by | Apr 14, 2016 | Criminal Defense


Unless you’ve been enjoying the shade underneath a rock, or the cool confines of a cave, you have to be aware of the recent kerflufle about encrypted iPhones and the FBI wanting to force Apple to decrypt it.

This post isn’t about that. Except tangentially. See, since the FBI successfully gained access to the phone (despite previously swearing to a judge that they couldn’t do so), there have been indications that the FBI has found nothing of use on the phone.

Could be true. Could not.

The point is, the FBI did not mount a full court press to have the phone unlocked because they knew there was useful information in there. They didn’t even have a good suspicion of useful data.

This is reflective of a certain thought process. In other circumstances, it is expressed in the phrase “If you don’t have anything to hide, why would you complain?” With regards to the cell phone, the attitude of law enforcement is that if it is locked, it has to be unlocked. Law enforcement can’t abide not knowing.

Another example would be a recent proposed law in New York. It takes the implied consent Fourth and Fifth Amendments exception, and applies it cell phones. Under the law, you would be deemed to have consented to a search of your cell phone by the simple action of having a driver’s license.

The way it would work is that if you were involved in an accident, police could demand to search your phone. If you refuse, you lose your driver’s license.

There is nothing about “fault” in the proposal. Nothing about “privacy” either. Just black and white, “do it or else.” And of course, it is premised on the work of some “victim’s advocacy group.”

There are uncountable reasons why someone would want to refuse to let a police officer look at their phone. Maybe it contains confidential legal or financial information. Maybe it contains intimate pictures. Maybe it has all kinds of health information. And maybe you were texting while driving.

There is only one reason for law enforcement to want to search the phone, however. Because they have to know. They cannot abide that the Supreme Court has unequivocally stated a warrant is required, establishing probable cause is just too much work.

Laws like this are horrible intrusive, on the innocent much more than the guilty. Hopefully, New York legislators are smart enough to realize that. Hopefully, they don’t let creeping authoritarianism swallow privacy concerns. Hopefully, they realize that the one interest the State has in flipping through your phone, doesn’t overcome all the reasons you might have to refuse them.