T: 01633 262 848

Blog

SECTION

PAGE of 18

Can a Police Officer seize your mobile phone, and do you have to provide your PIN or Password? 

When arresting a suspect, the police will routinely seize any mobile telephones in the suspect’s possession to gather evidence that may indicate their involvement in criminal activity. Such evidence can be found in incriminating text messages, WhatsApp messages, call logs, images, videos, and cell site data.

Depending on the settings created by the owner of the mobile phone, there is likely to be some sort of security encryption on a mobile phone. Whether it is a PIN number, password, pattern, fingerprint, or face recognition. To gain access to the electronic device, the mobile phone will need to be “unlocked”. However, that task may not be as straightforward as one would expect.

Suspects are often unaware of their rights regarding the giving or withholding of PIN numbers, passwords, and other forms of security encryption. Pressure is often placed on a suspect perhaps at the point when they are arrested, or when they are being booked into the custody suite or in an interview to provide this information to the police. 

Unfortunately, these can be occasions when the suspect is feeling vulnerable and shocked at the fact that they have been arrested and wishing to co-operate with the police investigation. 

The suspect can be given a false pretence that “they will be out of the custody suite if they provide this information”. We are also aware of situations where mobile phone passwords or PIN numbers were handed over to where the suspect was unrepresented or by someone who does not appreciate the law fully.

What suspects often do not realise is that they are entitled to legal advice on whether to provide their PIN or password, or other security encryption for their mobile phone to the police. Depending on the investigation, tactical decisions are usually made as to when the security encryption should be provided to the police. That is where you will need legal advice, from the outset.

The police at times can use tactics in order to obtain the PIN number or password from a suspect, either by threatening to hold the mobile phone for longer than necessary, or by incorrectly warning the suspect that a direct refusal will result in further offences being committed. This is not the case.

It is only once the police office have applied and obtained a court order, under section 49 of the Regulation of Investigatory Powers Act (commonly known as a RIPA notice), that refusal to provide such information becomes a criminal offence.

Section 49 enables the police, or other authorised law enforcement, security, or intelligence agency, to serve a notice on a suspect requiring the disclosure of the PIN or password. Once served it becomes a separate criminal offence to refuse to provide the information under Section 53 of RIPA. The maximum sentence for committing this offence is 5 years custody in national security cases and 2 years custody in all other cases.

 

 

Can the police stop me and look through my phone?

The police have powers to stop and question you on the street at any time. Typically, you do not have to answer their questions if you do not want to. The police can also search you but only if they have reasonable grounds to suspect you are carrying illegal objects such as drugs or weapons.

The police cannot stop you to search your phone without your consent. Exceptions include if they can justify using legal powers such as terrorism or child sex offence laws.

Another potential exception is if the police suspect the phone is stolen and their reason for searching you is to confirm that is the case (although it’s not fully established whether the police can search the phone itself).

Can the police search my phone if they suspect me of a drugs offence?

If the police stop you on suspicion of committing a drug-related offence, they may try to seize your phone under Section 23 of the Misuse of Drugs Act 1973. However, they can only do this if they have reasonable suspicion to believe it is evidence of a drugs offence.

In many situations, it is debateable whether the police can use Section 23 to seize mobile phones. Therefore, if you have been stopped, searched, and had your phone looked through on this basis,

What data can the police get from my phone?

The police can often obtain information about nearly every area of a person’s life simply by looking through their phone. Data they can get includes:

  • Social media activity
  • Photos
  • Messages to and from other people
  • Contact details for your friends, family, and acquaintances
  • Emails
  • Browsing history
  • Location data
  • Calendar
  • Third party apps, including WhatsApp
  • Shopping habits
  • Banking
  • “hidden” data such as deleted messages and photos

 

 

 

Can the police seize my phone data if I do not give them the password?

Even if you do not provide the police with passwords to unlock your phone, unless the data is encrypted, there may still be ways it can be accessed using modern technology.

Once lawfully accessed, your data could be used as evidence during criminal investigations. For example, location data could be used to confirm you were in a certain place at a certain time, or messages between you and other people could implicate you in an offence.

Can the police access my social media data?

If the police suspect you have committed an offence, they may try to obtain data from your social media accounts. It goes without saying that they can view anything you post publicly. However, the police may also be able to access your private data.

One way to do this is to seize your phone after you have been arrested to directly access your accounts. The other way is to approach the social media companies directly to request your data.

Facebook, Messenger, WhatsApp, and Instagram data

As Facebook owns Messenger, WhatsApp and Instagram, the policies relating to disclosure of data to law enforcement are broadly the same.

Facebook’s policy is to access and share your information in the following circumstances:

  • Where a legal request has been made – because Facebook is an American company, the police must make a Mutual Legal Assistance request via the Government to access any data. This can be a lengthy process, taking anywhere from 6 months to 2 years. However, on 3 October 2019, the UK and US entered into the Bilateral Data Sharing Agreement which will allow the police to apply directly to Facebook, speeding up the process
  • In an emergency – if Facebook believes in good faith that there is a risk of serious injury or death or imminent harm to a child, it will release your data without a Mutual Legal Assistance request

It is highly likely that Facebook will release at least some private data to the police if requested. Statistics released by Facebook show that from the period July-December 2018, authorities in the UK submitted 7,218 requests for information (either using a legal process or via an emergency request). Facebook provided data in 91% of these cases. 

 

 

Encrypted data

As WhatsApp is owned by Facebook, it will hand over data to the police under the same policies as above. However, as WhatsApp is end-to-end encrypted, the police will not be able to read your conversations with other people.

The information they can access includes:

  • Your name
  • Your mobile number
  • IP addresses
  • Locations
  • Your contacts
  • Data from web pages accessed via the app
  • The time and duration of your conversations
  • Contact details for the people you speak with

The only way the police can access the content of your conversations is if they directly open the app using your phone.

Conversely, Facebook Messenger is not end-to-end encrypted by default. This means the police can access conversation content unless you turn on the “secret conversations” feature which will enable encryption.

Snapchat

Snap Inc, the company which owns the Snapchat app, also has policies to release data to law enforcement if necessary. Again, as Snap Inc is an American company, the police must go through the Mutual Legal Assistance Treaty process to request information.

The exception is emergency requests where the company believes in good faith that there is an emergency posing a risk of imminent death or serious bodily injury which justifies releasing data.

Even if Snap Inc agrees to release some data, the police may only be able to access your “Snaps” or “Chat” content in limited circumstances. This is because once a Snap has been opened by all recipients, it is permanently deleted. If at least 1 recipient doesn’t open the Snap, it only remains on Snap Inc’s servers for up to 30 days and if the Snap has been posted to the user’s “Story”, it will be deleted after 24 hours. Similarly, the police will only be able to access Chat content if you or the recipient have chosen to save it.