Cell Phone Encryption – What’s Your Call?

When you read a letter or post that starts… "A Message to Our Customers – This moment calls for public discussion, and we want our customers and people around the country to understand what is at stake" – as does the letter Apple's CEO Tim Cook recently released urging consumer involvement in the discussion regarding privacy right – do you read on or move on? Capsicum Group urges you to read on, be informed, and render your opinion regarding this current legal batter.  Apple's refusal to comply with an order that would assist FBI officials in cracking the passcode used on an iPhone belonging to San Bernardino shooter Sayed Farook has added further What does recent case law present regarding the issue? There have been several instances where state opinions have differed as to whether or not a defendant must aid law enforcement in their pursuit of cell phone evidence.

• Virginia v. Baust in 2014, a Virginia Circuit Court ruled that criminal suspects CANNOT be forced to surrender their cellphone passwords but they CAN be forced to unlock their phone with a fingerprint scanner.
• In SEC v. Huang in 2015, a federal judge in Pennsylvania ruled that Bonan and Nan Huang's pleading of their 5th Amendment right against self-incrimination was warranted and they were NOT compelled to surrender their cell phone passwords.

While these rulings were on a case by case basis and very fact-dependent, it is clear that the government is eager to establish a federal standard as to what it has the right to access, and when. Technology companies will continue to give pushback when asked to give over the "golden keys" that would unlock any device. What also needs to be considered is whether or not particular types of cases should be held to a different standard. Would threats of terrorism or war supersede capital crimes? If a determination needs to be made, where should this line be drawn? This debate is far from over and will continue to cause controversy. What are your thoughts on the matter?