Cell Phone Privacy: What Farmers & Ranchers Should Know

The Fourth Amendment: A Warrant Usually Comes First

U.S. Constitution - Fourth Amendment

The Fourth Amendment protects people against unreasonable searches and seizures. In ordinary terms, it requires the government to have proper legal authority before searching private places, papers, effects, and many types of digital information.

Riley v. California, 573 U.S. 373 (2014)

The U.S. Supreme Court unanimously held that police generally may not search the digital contents of a cellphone merely because the phone was seized incident to an arrest.

"Get a warrant."

Riley does not mean a cellphone can never be searched. A valid warrant, voluntary consent, or a recognized exception to the warrant requirement may permit a search. The point is that the digital contents of a modern phone receive serious Fourth Amendment protection.

Your Phone Can Also Reveal Where You Have Been

Carpenter v. United States, 585 U.S. 296 (2018)

Your phone communicates with cellular towers as you travel. Those records can sometimes reconstruct a detailed picture of your movements. In Carpenter, the Supreme Court held that government acquisition of extensive historical cell-site location information is a Fourth Amendment search and generally requires a warrant supported by probable cause.

For farmers, ranchers and breeders, phone location records may reveal travel between farms, residences, feed stores, auctions, veterinarians, agricultural events, customers, business locations and private property.

The Court described its decision as narrow. Carpenter did not resolve every possible question about location tracking, real-time location information, border searches or other fact-specific settings.

A Warrant to Search Is Not the Same as an Order to Unlock

Why a PIN or Password May Receive Stronger Protection

The Fifth Amendment protects a person from being compelled to testify against himself or herself. Courts therefore examine whether forcing someone to reveal or enter a memorized passcode would force that person to communicate knowledge that exists in his or her mind. Lawyers call that a question of testimonial communication.

Seo v. State, 148 N.E.3d 952 (Ind. 2020)

The Indiana Supreme Court concluded under the circumstances of that case that forcing Seo to unlock her iPhone would violate the Fifth Amendment privilege against self-incrimination.

G.A.Q.L. v. State, 257 So. 3d 1058 (Fla. 4th DCA 2018)

The Florida appellate court rejected compelled production of cellphone passcodes under the circumstances presented there.

State v. Stahl, 206 So. 3d 124 (Fla. 2d DCA 2016)

Another Florida court reached a different conclusion concerning whether disclosure of a cellphone passcode was testimonial. This conflict is one reason readers should not rely on a blanket nationwide answer about passwords.

Face ID and Fingerprints Can Be Treated Differently

Some courts have treated biometric identifiers as physical characteristics rather than testimony. Other courts and judges have expressed concerns about compelled biometric unlocking, especially when the order effectively forces access to a large amount of private digital information.

State v. Diamond, 905 N.W.2d 870 (Minn. 2018)

The Minnesota Supreme Court concluded in that case that compelling the defendant to provide a fingerprint to unlock a cellphone was not testimonial for Fifth Amendment purposes.

Apple vs. the FBI: What Actually Happened?

Following the December 2015 terrorist attack in San Bernardino, California, the FBI possessed an iPhone used by one of the attackers. The government sought assistance from Apple under the All Writs Act.

The government wanted Apple to create modified software that would circumvent important iPhone security features and make attempts to determine the device passcode easier. Apple opposed the demand and argued that creating such a tool would effectively create a security bypass or "backdoor" that could threaten the security of other devices.

The dispute ended before the larger legal question was finally resolved because the FBI obtained access to the phone through another method. The Supreme Court did not decide the Apple/FBI dispute, and the case was not about Apple simply revealing a customer's PIN.

Practical Ways to Protect Your Phone and Your Farm Records

A modern phone may hold farm photographs, livestock records, breeding records, veterinary records, customer information, text messages, email, banking data, location history, business records, supplier information, property photographs, security-camera access, cloud storage, farm-management apps, employee information, association communications and family photographs.

Digital privacy matters even for people who say, "I don't have anything to hide." Ordinary business privacy and family privacy are worth protecting.

• Use a strong alphanumeric passcode rather than a simple four-digit code.
• Use a unique phone passcode that is not reused elsewhere.
• Keep iOS or Android fully updated.
• Enable automatic screen locking.
• Use the shortest auto-lock period that is practical.
• Enable full-device encryption where supported.
• Use two-factor authentication on important accounts.
• Protect the email account connected to the phone.
• Back up important farm and business records securely.
• Do not store sensitive passwords in unprotected notes.
• Review what information appears on lock-screen notifications.
• Use separate passwords for critical business systems.
• Be cautious about unknown USB devices, cables, links and QR codes.
• Know how to quickly disable biometric unlocking on your particular phone.

Know How to Disable Face ID or Fingerprint Unlocking Quickly

Modern smartphones generally have a way to temporarily require the device passcode before biometric unlocking will work. Learn the method for your exact device before you need it.

If Law Enforcement Asks for Consent

If officers are asking for voluntary consent rather than acting under independent legal authority, a person generally may decline consent to search a phone.

Do not physically interfere with an officer. Do not destroy evidence. Do not lie. Do not attempt to delete information. Do not resist detention, seizure of the phone, or execution of a warrant. A person can clearly state lack of consent while still remaining calm and physically cooperative.

What If Officers Have a Warrant?

A search warrant changes the situation. Do not obstruct execution of a warrant.

• Remain calm.
• Ask to see the warrant if circumstances permit.
• Note the agency and officers involved.
• Read the description of the device and scope of the search when possible.
• Clearly state that you do not consent to any search beyond lawful authority.
• Ask to speak with an attorney.
• Do not physically interfere.
• Do not destroy, alter, or conceal evidence.

Even when a warrant authorizes a phone search, whether a person can separately be compelled to disclose or enter a passcode can raise additional Fifth Amendment questions.