Google and Apple Won’t Unlock Your Phone, But a Court Can Make You Do It

Silicon Valley’s smartphone snitching has come to an end. Apple and Google have promised that the latest versions of their mobile operating systems make it impossible for them to unlock encrypted phones, even when compelled to do so by the government. But if the Department of Justice can’t demand that its corporate friends unlock your phone, it may have another option: Politely asking that you unlock it yourself, and letting you rot in a cell until you do.

In many cases, the American judicial system doesn’t view an encrypted phone as an insurmountable privacy protection for those accused of a crime. Instead, it’s seen as an obstruction of the evidence-gathering process, and a stubborn defendant or witness can be held in contempt of court and jailed for failing to unlock a phone to provide that evidence.

With Apple and Google no longer giving law enforcement access to customers’ devices, those standoffs may now become far more common. “You can expect to see more cases where authorities are thwarted by encryption, and the result is you’ll see more requests that suspects decrypt phones themselves,” says Hanni Fakhoury, an attorney with the Electronic Frontier Foundation. “And by requests, I mean demands. As in, you do it or you’ll be held in contempt of court.”

In some cases, the Fifth Amendment’s protection against self-incrimination may block such demands, under the argument that forcing defendants to unlock their phone would compel them to testify to their own guilt. But the few cases where suspects have pleaded the Fifth to avoid decrypting a PC—the legal equivalent of a smartphone—have had messy, sometimes contradictory outcomes. “This is not a settled question,” says James Grimmelmann, a professor at the University of Maryland Law School. And it likely won’t be, he says, until more appeals courts or the Supreme Court consider the issue.

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