Can Police Demand The Password To My Phone?

Phone security

Can Police Demand The Password To My Phone?

It is arguable that the average person essentially has their entire life on their phone. From contacts to personal photos, to financial account details. Access to a phone means access to their entire life. It is no wonder phone companies have focused on strong phone encryption.

The law is relatively complex when it comes to access to mobile phones. While police can seize your phone, whether they are able to demand you to give you passcode is a different issue.

WHAT ORDERS CAN THE COURT MAKE?

The relevant law is derived from Section 3LA of the Crimes Act 1914 (Cth). This section gives the Court power to grant an order for a person to allow police access to a “computer” or a “data storage device” as it states that :

(1)  A constable may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to..

(a)  access data held in, or accessible from, a computer or data storage device

(b) copy data held in, or accessible from, a computer, or data storage device, described in paragraph (a) to another data storage device..;

(c)  convert into documentary form or another form intelligible to a constable…”

If a person does not comply with that order, then the penalty can be imprisonment for up to 5 years and/or a $33,000 fine.

Where the allegations involve serious offences, this penalty increases to 10 years imprisonment and/or a $66,000 fine. These are serious consequences for not supplying a password.

However, the definitions of computer and data storage device have been extensively discussed in court.

ARE MOBILE PHONES CONSIDERED DATA STORAGE DEVICES?

Data Storage Device in Section 3 of the Crimes Act 1914 (Cth) means “ a thing containing, or designed to contain, data for use by a computer.

The Federal Court in the matter of Luppino v Fisher discussed the definition of what a data storage device. The Court stated the following:

“There is nothing in either of these Explanatory Memoranda or in the Second Reading Speech in 2001 to suggest that the terms “computer” and “data storage device” were intended to encompass mobile phones.

The definition of “data storage device” in s 3(1) of the Crimes Act is capable of encompassing a range of storage media including DVDs, CDs, USB drives and computer servers. It may well encompass other forms of storage media as well. However, the term “data storage device” does not seem apt to encompass a mobile phone and, as just indicated, there is nothing in the legislative history, the Explanatory Memoranda or the Second Reading Speech which suggests that the term was intended to encompass mobile phones. Such items have been so ubiquitous for so long that it is natural to expect that, had the Parliament intended that s 3LA should extend to mobile phones, it would have been obvious for it to have said so.

…While a mobile phone may have the capacity to ‘perform mathematical computations electronically according to a series of stored instructions called a program”, it does not seem apt to call such an item a computer. Mobile phones are primarily devices for communicating although it is now commonplace for them to have a number of other functions. However, there are now numerous goods and devices which may be said to contain a computer, such as motor vehicles, television sets, refrigerators, DVD players and the like, but none of these are, in common parlance, called a “computer”. Again, the very ubiquity of mobile phones suggests that, if the Parliament had intended that they should be encompassed by the term “computer” it would have been obvious to say so.”

DO I HAVE TO GIVE POLICE MY PASSWORD TO MY PHONE?

While the legislation does allow the Court to make orders for passwords for access to computers and other data storage devices, a mobile phone is not included in that list of devices. A phone holds the capability to store data but it does not hold information to store data specifically for use by a computer. The Court refused to issue an order in relation to obtaining the mobile phone password.

It must be noted that nothing prevents police from asking for your password. Police can ask for your password but not compel you to give it to them under the Crimes Act 1914 (Cth).

If you find yourself being searched or a warrant was issued to search your premises, contact National Criminal Lawyers® for a confidential discussion.

 

 

 

 

 

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