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Jan
18
2011

  • While police cannot force you to disclose your mobile phone password, once they've lawfully taken the phone off your person, they are free to try to crack the password by guessing it or by entering every possible combination (a brute-force attack). If police succeed in gaining access your mobile phone, they may make a copy of all information contained on the device for subsequent examination and analysis.
  • Therefore, if you care about your privacy, password-protecting your smartphone should be a no-brainer. Better yet, you should ensure your smartphone supports a secure implementation of full-disk encryption. With this method of encryption, all user information is encrypted while the phone is at rest. While it isn't absolutely foolproof, full-disk encryption is the most reliable and practical method for safeguarding your smartphone data from the prying eyes of law enforcement officers (and from wrongdoers, like the guy who walks off with your phone after you accidentally leave it in a bar.)

  • Based on these precedents, California's Supreme Court held in Diaz that mobile phones found on arrestees' persons may be searched without a warrant, even where there is no risk of the suspect destroying evidence. Therefore, under Diaz, if you're arrested while carrying a mobile phone on your person, police are free to rifle through your text messages, images, and any other files stored locally on your phone. Any incriminating evidence found on your phone can be used against you in court.

  • The takeaway from Diaz, therefore, is that you should store your mobile phone in your luggage, footlocker, or in some other closed container that's not on your person, particularly when driving an automobile. (For more on this subject, see our 2008 article summarizing the search incident to arrest exception in the context of mobile phones. Also see The iPhone Meets the Fourth Amendment, a 2008 UCLA Law Review article by law professor Adam Gershowitz.) 

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"The doctrine says that the sale of an invention exhausts the patent-holder's right to control how the purchaser uses it."

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