As a regular cannabis smoker, William Montanez had a criminal record when he was pulled over in June of last year. He was stopped by police in Tampa, Florida but didn’t attempt to hide any incriminating evidence, reportedly telling them: "Yeah, I smoke it, there's a joint in the centre console, you gonna arrest me for that?" Little did he know, this act of defiance was the first step on a path which would eventually lead him to jail.
Following a search of the vehicle, 25-year-old Montanez was arrested for possession of cannabis and two small bottles of what the officers believed to be THC oil. He also received a charge of possession of a firearm while committing a felony (an offence in itself) in relation to a gun in the glove box. Montanez had no history of violent crime and this was in no way a big bust for the police. But when they saw a message on the lock screen of his phone - “OMG, did they find it?” - they demanded he unlock it.
Montanez suspected that they would snoop around his phone, rather than simply try and ascertain what this “it” referred to. He also didn’t want the officers to see private information on there and intimate pictures of his girlfriend. So, despite being told that they could get a warrant which would force him to give them the passcode, he refused. They got the warrant. He still refused.
This puts the authorities in a difficult situation. There is a legal precedent for searching phones which means a warrant is needed. But as to whether a person can be forced to give up their passcode is more tricky. It is an issue which bleeds into intellectual property, civil liberty and Fifth Amendment rights.
One might automatically side with the accused here. Especially in Montanez’s case, as he was locked up for an additional 44 days for contempt of court (eight times longer than he spent in jail for the drugs and firearms charges). However, making it more difficult for police to access suspects’ digital data would give criminals an advantage and there are cases when access to a phone is in the public’s interest.
Hillar Moore, the district attorney in East Baton Rouge, Louisiana, argues that making it more difficult for the authorities to access this data would “have an extremely chilling effect on our ability to thoroughly investigate and bring many, many cases, including violent offences.” Moore enlisted the help of the FBI to hack into a phone belonging to a suspect in a fatal Louisiana State University fraternity hazing ritual. “It would basically shut the door,” she added.
Though there is no precedent for accessing a passcode in the state of Florida, a local case has helped inform more recent decisions. A mother shopping at a Target store in Sarasota in July 2014 noticed she was being filmed by a man when she crouched on the ground. Having confronted him, he fled. However, two days later Aaron Stahl was arrested and charged with video voyeurism.
The authorities asked for his passcode but, even when faced with a warrant, he refused - citing his Fifth Amendment right not to incriminate himself. The judge ruled in his favour but, in December 2016, this was overruled. Eventually, Stahl agreed to plead no contest in exchange for probation. He had succeeded, however, in never handing over his passcode.
“Up until that point you could be a paedophile or a child pornographer and carry around the fruits of your crime in front of law enforcement officers, prosecutors and judges and taunt them with fact that they couldn’t get the passcode,” said Cynthia Meiners, who prosecuted Stahl. “You could say, ‘I’m a child pornographer and it’s on my phone but I’m not giving you my passcode because I would be incriminating myself’.”
Currently, law enforcement use a range of third-party tech companies to help them access data on phones which they can’t get into. In fact, federal agents on the US border have given themselves the authority to search the phones of those entering the country. Hundreds of thousands of dollars have reportedly been spent on compelled decryption technology for this exact purpose.
Of course, one should never be able to get past this security however, there is now a whole industry which exploits weaknesses in these systems. Meanwhile, tech giants such as Apple and Samsung are working even harder to try and seal the gaps.
In addition to passcodes, the prevalence of fingerprint and facial recognition technology makes this issue even murkier. However, legal experts believe that the Fifth Amendment rights protect data that one possesses in their minds (such as passcodes) but do not protect one’s physical traits (fingerprints and facial signature). Nonetheless, it remains a difficult issue.
“It’s becoming harder to escape the reach of police using technology that didn’t exist before,” explains Riana Pfefferkorn, the associate director of surveillance and cybersecurity at the Center for Internet and Society at Stanford. “And now we are in the position of trying to walk that back and stem the tide.”
The "did they find it?" message received by Montanez was actually from his mother, as he was driving her car, and related to the gun in the glovebox. The THC oil was tested and found not to contain any illegal substances. Still, he spent 44 days in jail because he believed it was his right not to hand over his passcode.
Montanez says he’s been treated differently since coming out of jail, including being banned from his favourite bar. However, he remains defiant. “I felt like they were violating me. They can’t do that,” he stated. "F**k y’all. I ain’t done nothing wrong. They wanted to get in the phone for what?”
He claims he was subsequently pulled over even more than usual until, eventually, he moved around an hour’s drive away - to Pasco County. “The world should know that what they’re doing out here is crazy,” he added.
In other states, case law provides a firmer framework. However, the authorities’ right to access your passcode remains one of the increasing quirks of the modern legal landscape where the legislature is struggling to keep up with technology.
