Should the FBI, Other Federal Government Agencies Obtain Your Mobile Device Password?

A very interesting article showed up in the Wall Street Journal on September 6, 2012, focusing on an emerging issue and potential legal battle brewing between the mobile device and operating system players and the Federal Bureau of Investigation (FBI, and by extension the federal government) – that of unlocking smartphones and providing passwords for mobile devices confiscated from crime suspects or otherwise gathered as evidence for crimes.

The confrontation began earlier in 2012 when Google refused to unlock an alleged pimp's mobile phone that was powered by its Android software. Google refused to do so even after the FBI obtained a search warrant.

According to the article, such an effort typically falls under what is referred to as the Supreme Court's Third Party Doctrine, which for the most part allows government agents to obtain data stored with third parties even without obtaining a search warrant.

Google's refusal to "break" the account was unexpected by the FBI, and was deemed unusual and controversial – as the article makes clear, the legal standards here are treading on new ground that hasn't necessarily been an issue before. How so?  

The typical Third Party Doctrine efforts to obtain data have in the past not taken into account the issue of passwords – the unlocking of a password is a particularly delicate issue, with potential ramifications that exceed the typical Third Party Doctrine scenario. Unlocking a smartphone or tablet password can potentially unlock a great deal of other information that would likely fall outside of the Third Party Doctrine's scope – information such as e-mail, text messages, voice calls, voice messages and visual voice message headers, and address lists.

Asking a third party for a password "is awfully new and aggressive," points out Paul Ohm, associate professor at the University of Colorado Law School and a former federal prosecutor. "Generally, we don't like the FBI to have access to our keys even with a warrant." The requests are legally tricky because the Constitution's Fifth Amendment protects people from self-incrimination.

As a result, passwords – and the data protected by those passwords – often cannot be used for prosecution.

There is very little data at this point in time on the frequency or efficacy of such FBI requests. No one knows how often the FBI makes such requests, nor is it clear how often – if ever – companies such as Google either do or do not cooperate (it appears Google likely always refuses). The article provides further insight here through an Apple spokesperson who says that Apple "won't release any personal information without a search warrant, and we never share anyone's passcode. If a court orders us to retrieve data from an iPhone, we do it ourselves. We never let anyone else unlock a customer's iPhone."

It's both an interesting and important battle – and it will have unique ramifications longer term, depending on where the line in the sand is ultimately drawn. For a great deal more detail, it is well worth reading the article in its entirety.

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