James Czerniawski: Let’s protect the right to keep your phone locked

As we enter the start of a new decade, it is incredible to see how technology has played an increasingly larger role in our lives. Ten years ago, many were operating with a flip phone and limited minutes, and today, the phone is seemingly a hub for everything a person does: emails, banking, texting, calling, surfing the internet, playing games, reading news, social media and so much more.

Technological advancements also introduce a whole host of new problems — specifically when it comes to our constitutional rights. For example, if a person is charged with an alleged crime, can police compel them to give their biometric information to unlock the contents of their phone? Compelling a person to unlock their device is a violation of their 5th Amendment right to not be “a witness against himself” — and action is needed to ensure Uthans aren’t placed in that compromising situation.

Law enforcement argues that there are numerous reasons for why these compulsory actions are necessary. They believe that in a time-sensitive case, like a kidnapping, compelling someone is the only way they can do their job effectively and efficiently. This is reasonable, and law enforcement can certainly maintain the ability to compel biometric access in exigent circumstances.

Police also want to retain this ability in order to prosecute people with child pornography on their phone. While this is a crime that should be punished, the legal system is supposed to work on the grounds of innocence until proven guilty.

There were 226 people arrested for child pornography in Utah in 2018, representing 0.3% of the 80,622 crimes in Utah in 2018. Crafting policy that diminishes the rights of 99.7% of people accused of crime — let alone the rest of innocent Utahns — in order to more easily investigate the 0.3% of possible offenders is far from ideal.

In compelling people to unlock their phone because they are an alleged criminal, police are treating them as a sort of second class citizen, diminishing their 5th Amendment rights in the process because law enforcement is seeing the criminal first, not the presumably innocent citizen.

Additionally, police argue that they should have the power to compel someone to unlock their phone with biometrics because they otherwise could not gain access. This is simply untrue. When the San Bernardino shooter’s phone was in FBI possession, they tried compelling Apple to create a backdoor to access the contents of the phone. Apple correctly realized their customer’s privacy would be compromised if they were to comply, and refused the request. The FBI argued the phone would be unhackable, yet ultimately, they were able to hack into the phone and get the information they were looking for. Technology is never in a situation where it is impossible to gain access.

In addition to protecting a person’s 5th Amendment right not to incriminate themselves, law enforcement should not be allowed to compel a person to unlock their phone with biometrics because it is not possible to limit the amount and kinds of data to which police would gain access. A smartphone is like an extension of a person’s mind the way it is used today. From surfing the web to listening to music to texting and calling people, the smartphone has become a physical manifestation of our mental activity, collecting massive amounts of data. If law enforcement were to compel you to unlock your phone, there is no way of restricting them from what kinds of data on the phone — and from your mind — they can access.

While some would normally advocate for the courts to settle the matter, courts have been inconsistent in dealing with these cases. Part of the blame lies with the U.S. Supreme Court for not previously clarifying any difference between physical and mental communication, and whether biometrics should be included under the 5th Amendment.

Because lower courts have been split on the issue, Utah’s Legislature is in the position where it can set baseline privacy standards instead. In doing so, lawmakers can provide a clear pathway for all parties involved. It is high time we return to a policy of presumption of innocence and make sure technology doesn’t trump people’s 5th Amendment rights.

James Czerniawski | Libertas Institute

James Czerniawski is the tech and innovation policy analyst at Libertas Institute.