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How to Avoid Self-Incrimination via Smartphone

Should cops be allowed to search smartphones when arresting people? While the Supreme Court mulls it over, you can take steps to protect yourself.
May 7, 2014, 6:30pm

This guy is having way too much fun on what is probably not his smartphone. Photo via Flickr user Steve Baker

David Riley was pulled over for driving with expired license plates, in 2009, when he got strapped with the much more serious charge of attempted murder. After finding two guns in his car, police started snooping through his smartphone. Using photos and call records as evidence, Riley was connected to gang activity and suspected of playing a role in a recent drive-by shooting. No witnesses could tie him to the scene of the crime, but the evidence from his phone was enough to land him a conviction.


Riley appealed, and his case is one of two the Supreme Court is currently hearing as it mulls a ruling on the broader question of whether police should be allowed to search the contents of a phone at the time of arrest without first obtaining a warrant.

Those arguing for the legality of these searches point to a 1973 high-court decision that legitimized a search after another petty traffic violation had turned up a pack of cigarettes found to contain heroin. Though smartphones are often no bigger than a pack of cigs, they contain a lot more than it was possible to carry on one's person when such bodily pat-downs were deemed permissible. A 16-gig iPhone can contain 16 pickup trucks' worth of paper, according to a brief filed by the Electronic Frontier Foundation (EFF). The San Francisco–based advocacy organization argues that amount of information stored smartphones is akin to what was once stored in a house or office—and so should require the same sort of warrant needed to search those places.

The issue has got Supreme Court justices debating all sorts of things that generally befuddle people their age, like airplane mode and cloud storage. Any ruling has to both keep up with technology and outlast it. Since it doesn't look like they'll be outlawing warrantless phone searches outright, here are a few tips to keep the contents of your phone from indicting you if and when it gets searched by cops.



If you don't have a pin or password on your phone already, set one up and have the thing lock automatically when you're not using it. A recent study by ConsumerReports found that just over a third of Americans have a lock-screen password. The police can try to pressure you to tell them your password, of course, but if you refuse to give it to them, they'll need to get a warrant and possibly break into your phone before being able to look through every photo you've ever taken of your cat and all the texts your mom recently sent you.

Close Your Apps

Take the extra precaution of logging out of apps when you're not using them, rather than leaving them on in the background. It's not just Fitbit that's tracking your every move. Lots of apps that have nothing to do with your location are constantly tracking it to sell to advertisers. "[M]y phone shows that I arrived at work yesterday at 8:56 AM," Adam M. Gershowitz, a professor at William & Mary Law School, said after digging into his own iPhone, noting that it also showed where he had lunch. Beyond location information, banking and communication apps are constantly updating with your personal information. One more password might help keep police a step away from knowing everything about you instantaneously.

Keep It in the Cloud

Though it might seem like a fine point to make, courts that have weighed in on the matter seem to agree that a search of your phone shouldn't include data stored in the netherworld of a cloud. This means cops can't dig through all the files you have on Google Drive or DropBox just because they have your phone. "So that's a solution, [but] it's probably not the best solution," says Hanni Fakhoury, staff attorney with the EFF. That's because if they have probable cause, police can still obtain a warrant or subpoena a network provider to get access to the contents of all of that stuff too.


Leave It at Home

If you have a good reason to think you might get arrested today, your safest bet to avoid a search of your smartphone is to leave it at home in the first place. "If you're heading off to an Occupy protest, or it's May Day and you're going to riot in the streets or whatever, you're better off taking a dummy phone that has no information on it," Fakhoury says. The 20 bucks spent on a cheap flip phone may save you from a prolonged and possibly incriminating search in the event of an arrest.

Destroy the Evidence?

Deleting the contents of your phone after being arrested is a big no-no. According to Fakhoury, trying to remotely wipe your phone or otherwise remove data when you're in the process of being booked is not a good idea. "It's really, really legally problematic to do anything after you've been arrested to try to delete data on your phone or hide the fact that you have stuff on your phone," he says. Not only may it be illegal, but it could be woefully ineffective too, since more and more police departments are dropping seized electronics into Faraday bags, which block all electrical signals and would likely prevent you from remotely wiping its contents.

Clear Data Regularly

"I'm not saying its foolproof," Fakhoury says, and he wouldn't offer this up as legal advice, but maintaining a regular habit of clearing your phone may serve you well if arrested. Setting a phone up to clear its contents every 30 days, for example, could leave police with less information to search at the time of an arrest. "I think the government would have a harder time to say you were trying to impede its investigation because your argument would be, 'Nope, this is my traditional security practice. I put this in place long before I knew that I was even suspect to investigation.' That's less problematic." iPhones can be set to automatically delete their contents if the incorrect PIN is entered 10 times in a row, and similar functionality is available for Android phones. Sophisticated police departments are well aware of this feature, and it's mainly useful for protecting your info from thieves, but doing something like this to clear your phone may be another useful precaution.

There's no clear prescription yet from the Supreme Court on whether and to what extent police can search cell phones at the time of arrest, but justices have already started debating the merits of allowing warrantless searches based on the cause of an arrest or else allowing for some aspects of a phone to be searched and not others. The decision will replace the various stances taken by individual states, with some banning such warrantless searches entirely and others allowing them for even minor traffic violations. From the extensive debates around these issues, it's clear that police are eager to use the same technology that makes our lives easier to make their jobs easier. In the end, the limitless connection we have to our phones will make this decision from the Supreme Court—expected in June—that much more critical.

As the youngest Supreme Court justice, Elena Kagan, pointed out, "Most people now do carry their lives on cell phones." Sure, it's convenient to keep track of everything from the miles you run to the money you spend to the random photos you took while raging last night on your phone, but the personal nature of these activities means it's a good idea to prevent your mobile device from triggering a police investigation the next time you get pulled over for speeding.

Beenish Ahmed is a freelance multimedia journalist and Eric Elder is an attorney and writer.