Smartphones contain much or nearly all of our personal data, and that potentially offers the government gigabytes of evidence that can be used against you if you are arrested or charged with a crime.

But the government’s ability to view that data depends upon several factors, including password protection, information available through third parties and a patchwork of older court decisions.

Two most common ways the government gets your information

Law enforcement may be able to access your phone data, either with or without having possession of your phone. Here are the two main methods:

  • Third parties: A lot of phone data is stored elsewhere. For example, when you back up your iPhone to Apple’s iCloud, the government may be able to access it through the company, providing they have the right court order. You do have rights under Fourth Amendment protections against illegal search and seizure. The Electronic Communications Privacy Act of 1986 also dictates that the government must have a warrant, court order or subpoena to get the information.
  • Directly from your phone: If your phone is protected by a password or has biometric unlocking features, there’s a chance police can’t get their hands on that data. The government can, in some instances, gain access by using tools, such as GrayKey or Cellebrite, to crack your password if they have the necessary search warrant. However, the Fifth Amendment says you can’t be forced to incriminate yourself.

Case law is not clear over accessing cellphone data

Many of the legal arguments used in these cases pre-date cellphone technology – many laws are centuries old and pertain to paper documents. Smartphones, by contrast, hold massive amounts of personal information.

While the government’s ability to access your data may be beyond your control, enough uncertainty exists, before you hand it over, to consult an experienced criminal defense attorney who will protect your rights to keep that information private.