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Smartphone Search and Seizure Law: Update on iPhone Security

By Christopher Coble, Esq. on September 18, 2017 | Last updated on March 21, 2019

With every new advance in technology comes greater privacy concerns, especially when it comes to police searches. Email is just what it says, right, electronic mail? But while police may need a warrant to read handwritten letters, they may not need one to get access to your email. And as we live more and more of our lives on our smartphones, and those smartphones get more and more technologically advanced, we're left to wonder whether that means law enforcement can have more access to them.

Apple's iPhones, with their Touch ID feature allowing users to unlock their phones with their fingerprint, have been central to search and seizure questions, among consumers, privacy experts, and the courts. And with two new iPhones coming out with some new security features, those questions will continue to mount.

Face ID

The new iPhone X will have a seemingly awesome new feature. Face ID will allow users to unlock the phone just by looking at the screen, and lock it again by looking away. This seems like it adds layers of security to your phone: first, someone could guess a passcode, but they can't fake your face; and second, your iPhone will lock as soon as you're not looking at it, meaning if someone swipes it while you're using it, they won't be able to access your phone's apps or data.

But your iPhone might be less secure to law enforcement searches. In many cases, courts have ruled that people have a privacy interest in the contents of their mind, i.e., their phone passcodes, but not in their fingerprints, meaning that police can force people to unlock their phones with their fingerprints, but can't compel them to hand over their passcodes. (A few courts have held people in contempt for refusing to provide passcodes, as well.) And many believe that if you don't have a privacy interest in your fingerprints, you likely don't have one in your facial features. Therefore, cops may be able to force you to unlock your phone with your face.

Connections and Cop Buttons

While Apple's new hardware may make it easier for law enforcement to unlock an iPhone, the company's new software has added features designed to make extracting data from an iPhone more difficult. Apple's iOS 11 will now require a passcode to be paired with a desktop, whereas before the phone simply asked if you wanted to trust the new device. As described by Wired, this "meant if cops or border agents were able to seize an unlocked iPhone or compel its owner to unlock a locked one with a finger on its TouchID sensor, they could simply plug it into a desktop via a cable in its lightning port, choose to trust the new machine with a tap, and upload its contents using forensic software like Elcomsoft or Cellebrite."

Additionally, iOS 11's new "S.O.S. Mode" -- more colloquially called the "cop button" -- allows users to quickly disable's TouchID, also requiring a passcode to unlock. Between these two tweaks, Apple might be trying to balance recent search and seizure rulings with their users' privacy interests.

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