Some courts have interpreted this to require the government also to show it has knowledge of the specific pieces of evidence it expects to find on the device. This exception comes from a US Supreme Court ruling.
In Fisher v. United States , someone being investigated for tax fraud gave documents prepared by his accountant to his lawyer.
The IRS wanted those documents; the defendant said that producing them would be self-incriminating and therefore was protected by the Fifth Amendment. The 11th Circuit Court of Appeals , on the other hand, ruled the other way in a different case.
There are other ways to protect your phone. Some phones can use fingerprints, facial recognition, and iris scanners to unlock instead of passwords. Again, courts are all over the map on this. Crocker says courts should consider that the evidence police can get from your fingerprint is much more restricted and known than what they can get when your fingerprint unlocks a phone.
So far, though, he says, courts have been more likely to rule that the Fifth Amendment does not apply to biometrics than they are that it applies to passcodes.
Short answer: Your Fourth and Fifth Amendment rights generally end when you do. But other parties have rights, too, and those might be enough to keep the government out of your phone. That said, law enforcement might have to get the right paperwork if they were looking for evidence against someone else on your phone — after all, their Fourth Amendment rights are still intact.
Attorney General Bill Barr has made no secret of his disdain for Apple over its refusal to grant law enforcement access to locked and encrypted devices. The agency has made this argument before. You may have noticed by now that, while many of the cases concerning phones and passcodes are recent — some are even still making their way through the legal system — the cases cited to make legal arguments are decades or even centuries old.
The wheels of justice turn slowly, and judges are often forced to use decisions about access to pieces of paper to inform their rulings about access to devices that hold tremendous amounts of personal information: who we talk to, when, and about what; where we were yesterday, last month, or three years ago; what we spent money on or got money for; our calendars, photos, emails, and contacts.
So the non-disclosure agreements are intended to prevent unauthorized disclosure of that sensitive law enforcement information. Allen says the FBI only uses cell site simulators like pen registers, which only record numbers called from a particular phone line. The Department of Justice policy says cell-site simulators used by federal agencies "may not be used to collect the contents of any communication in the course of criminal investigations. This means data contained on the phone itself, such as emails, texts, contact lists and images, may not be collected using this technology.
John Crimpel of the NYPD, which disclosed its use of the technology earlier this month, also said the department only used the device to track phones. Last year it was revealed that federal agents fly small planes loaded with Stingrays to spy on Americans' cell phones across the country.
And when the FBI supplies local police with Stingrays, even their agreements remain secret. Earlier this year, court documents revealed that the FBI has instructed local police to drop criminal charges rather than reveal "any information concerning the cell site simulator or its use. The reason any of this is now public is because of legal battles led by the American Civil Liberties Union, which has built a map that shows what states use Stingrays.
This is a device the FBI started using in It shouldn't take 20 years to get a hearing on a surveillance technology," said ACLU technologist Christopher Soghoian, the nation's leading expert on Stingrays. The government fought us every step of the way. This is transparency at gunpoint to them," he said.
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