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Can The Courts Force You To Give Up Your Smartphone Passcode?


In a recent case in our office, attorney Devens Hamlen faced the issue of a phone locked with a passcode. He successfully argued that a passcode, which is generated from the mind, is different from a piece of physical evidence, like a finger print or retina scan.

In today’s video Devens talks more about how that distinction can play out in other real world cases.  To learn more about this case, watch Can Your Phone Be Used Against You As Evidence?

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Below is a transcript of the video:

Can The Courts Force You To Give Up Your Smartphone Passcode?

I think if you had a passcode to enter your building and the question was whether you were the only one who had access to the building at that time and the government was trying to see whether your passcode worked or whether what was inside the building based on your passcode. Based on the at least the law in Maine right now because this was the only court case that has been decided in Maine in our case they wouldn’t be able to do that.

But if it was a retina scan then they would be able to do basically have you stand in front of the retina scan and have it rescan the retina and be able to enter the building.

If you had a storage unit with padlock on it and a padlock code on it, and we have that case, I would analogize it to the one that we just won in saying that the government could force you turn over the passcode in order to enter the storage unit. For the same reasons that they can’t ask you to enter your passcode in order to enter your phone and see what data is on the phone even if they had a search warrant.

In my case they had a search warrant to seize the phone, they had a search warrant to search the phone and they couldn’t search it because of the encryption on it, and so they asked my client to put in his key code, which the court said that you couldn’t give.

In my case there was no other way to be able to get into the phone and find that information. And absented him putting in his passcode. I think if you had a house where there were other access points you had a warrant you could probably go inside that house even if you had a punch code on the outside.

Because in my case they were saying well the only other option we have is to send it this facility in Boston that basically rips apart the whole phone and maybe you can get the information off maybe not. So the judge would have let them essentially because they have seized the phone and they have been granted access to the phone it was just whether the state could force my client to turn over the passcode versus sending it to this facility in Boston or wherever to have that information extracted from the phone. 

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