Code cases: Police want phone access, but some pass

By Elisabeth Hulette The Virginian-Pilot October 12, 2014

VIRGINIA BEACH

Picture this: You're being prosecuted for a crime.

Police have a search warrant for your iPhone, but they can't open it without your pass code. Now they're asking a judge to order you to give it up. What do you do?

If you're David Baust, you put up a fight. The Emergency Medical Services captain, who is charged with trying to strangle his girlfriend during a fight in February, argues the move raises a Fifth Amendment issue - that by opening his phone, he could incriminate himself.

A judge will decide Baust's case, but it's unlikely to settle the issue for good. Apple and Android recently announced plans to dramatically increase the amount of information on their phones that's automatically encrypted - translated into code - making it far more difficult for law enforcement officials to get the access they say they need to convict criminals.

As that happens, attorneys and experts say, the courts are likely to see more cases pitting prosecutors and police against pass codes.

"It's a bitterly disputed debate on all fronts," said Sharon Nelson, immediate past president of the Virginia State Bar and the president of Sensei Enterprises, a digital forensics company in northern Virginia.

"You can see the need of law enforcement on the one hand," she said. "On the other, the Fourth Amendment means nothing if you have to turn your life over to the government." The Fourth Amendment prohibits unreasonable searches.

Police access to cellphones changed radically after a June ruling by the U.S. Supreme Court. Officers still can extract information from cellphones of people who are arrested but now need a court-issued search warrant.

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Code cases: Police want phone access, but some pass