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Should police be able to force you to give up your cellphone passcode?

It wasn’t long ago that we simply used cellphones to make phone calls outside of home. Now, in addition to the various ways we use them to communicate, we also utilize them for media consumption, as a mass storage device and for various other conveniences. The more uses phones have, the more vital it is that we keep them secure.

But what happens when law enforcement believes you hold case-changing evidence on your phone?

This is a question the Florida Supreme Court has recently battled with in light of an arrest made in spring of 2019. Tampa police stopped William Montanez in his vehicle and arrested him for possession of a firearm while committing a felony. The suspected felony was possession of what they believed to be THC oil. When they confiscated his two iPhones, however, he refused to give them his passcodes because of the personal information he had in them. He then spent 44 days in jail for his refusal.

What does this mean for your rights?

The event has sparked a debate about whether Montanez’s rights were abused. Some believe that, while law enforcement may have a right to search his phone legally with a warrant, trying to force Montanez to give up his passcode violates his Fifth Amendment right. And while there is disagreement on the interpretation, one argument is that the Fifth Amendment may protect individuals from incriminating themselves; “…nor shall be compelled in any criminal case to be a witness against himself.”

Regardless of the Fifth Amendment’s implications, the question of whether a person should have to give up their passcode is still up in the air. Every case is different and bears its own unique and complex circumstances, not to mention gravity. Information on a cellphone may mean much more in a violent offense charge than it would in a petty theft charge. So, would it be necessary for a law to be in place to enforce giving up a passcode? And how would the authorities go about it?

As we venture into more advanced technological landscapes, we will increasingly encounter crossroads where we need to consider whether our desire for safety overrides our right to privacy. Whether you believe passcodes should be given to law enforcement, or defendants should have the right to privacy on the matter, it seems the need for legal protection may be more prevalent in our current digital age than it ever has been.

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