Do I have to unlock my phone for Police?

It’s a common story in an era where mobile telephones are prevalent; Police asking arrested or detained persons to either provide a pin code to unlock an iPhone or other mobile or ‘requesting’ that an arrested person does so.

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During the pressure of an arrest, or in the desire to assist or be seen to be co-operating with police, many accused persons form the view that they are lawfully required to provide a pin or unlocking code for their phone to police. Sometimes, the manner in which the police request a passcode to unlock a phone will resemble a lawful direction; essentially be a question that sounds as though the person must comply with it or risk prosecution. What must be remembered, however, is that save for certain matters relating to firearms and motor-vehicles, an accused person has a right to silence. An accused cannot be compelled or required to assist police in their attempts to gather evidence against them as a general rule and particularly so with respect to making any comment to them whatsoever.

Many phones are now set-up in a fashion that in the absence of a pass-code or password, they essentially function as expensive bricks. Some have features such as requiring a person to wait a period of time following the entry of an incorrect code, that increases with each wrong entry. Others will wipe the content of the telephone after a pre-determined number of incorrect entries. Police abilities to ‘break into’ locked telephones are constantly improving but are always slightly behind the curve set by major corporations such as Apple and Google who recognise the value people reasonably ascribed to privacy.

While many people worry that failing to provide an unlock code may make them ‘look guilty’, there is no general requirement for a private citizen to give up their personal data to police. Nor is it the case that private photos, conversations with loved ones and friends, work e-mails, banking information and the like should readily and freely be surrendered.  In short, wishing to maintain your privacy is not a matter that the police can allege is something that makes you look guilty; privacy is something that is rightfully valued by many members of society.

If you are detained by Police, remember that while they have the power to seize your phone if they suspect it contains information that will assist with their investigation into a crime, you have the right to seek legal representation and not answer questions, and that includes questions in relation to your telephone pin-code or password. Once you have provided your password or pin-code to police, any access to the data contained on that device will be considered as having been freely provided.

If you have been arrested, detained or questioned by Police it is important to seek legal advice at the earliest opportunity. For a free, no-obligation review of your situation, make an appointment here. For 24 hour, urgent legal advice or representation you can contact Tom Cuthbertson on 0423 534 621 or by e-mail at tom.cuthbertson@culshawmiller.com.au.