Do I need to give the Police access to my phone?
Police Officer: “Unlock your phone”.
Suspect: “Do I have to?”
Police Officer: “Yes you do”.
But do you really have a lawful obligation to do so? The answer is… Sometimes
This all started way back when Blackberry hit the market with their new device. Some of you may remember that Blackberry was the hottest phone on the market. It was the first phone with the ability to send and receive email. During the production of that unique feature, Blackberry invented, what was then known as, secure messaging. This meant the message could not be read by anyone including Blackberry. It was a game changer.
The Blackberry was considered so secure that it became the phone of choice for the underworld. Fast forward to 2011, the Blackberry was ‘hacked’ during a competition in Vancouver, CA. The first time in history. This did not stop criminals from using the device to coordinate their activities.
In 2018, it was reported that 10,000 modified Blackberry phones were in use in Australia. This posed an issue for law enforcement. So much so that in 2019, the Australian Federal Police sent a Blackberry to the headquarters in Canada in an attempt to gain access to the device. They were successful which led to the exposure of a $1.5 billion drug haul.
A good result for law enforcement but unfortunately, it is too hard and expensive to travel to Canada every time the Police want to search a phone.
Introducing Digital Evidence Access Orders (DEAO)
The Digital Evidence Access Orders (DEAO)s can be issued by an eligible officer (Local Court Registrar, Magistrate, Judge) and can only be used during a search warrant. This order allows police to demand your PIN/password for any of your devices. If you refuse to provide your details, you will be charged with a separate offence relating to your refusal.
When does a Digital Evidence Access Order typically Occur?
These types of orders are must accompany another warrant, whether that warrant be for a search and/or crime scene warrant. They can be made at the same time of these warrants or after the initial warrant has been issued, regardless of not if that initial warrant has been executed.
The officer must produce the DEAO for inspection upon request, unless, the order is issued under a covert search warrant.
These orders can be used in conjunction with Dedicated Encrypted Criminal Communication Device Orders or DECCD Access Orders which is a mobile device that is associated with high level or serious criminal activity involving hardware modifications or software deployed to block and/or replace features on the device.
Person search on the street
If you are stopped on the street and searched by the police, they may ask you to provide the PIN for your phone. Before the police search you, they must satisfy certain conditions in their mind prior. Non-compliance does not automatically render the search unlawful. If during this search the officer suspects that your phone may have evidence of such an offence, they may ask you for the PIN. For example, the police may be looking for evidence of a graffiti offence or suspicious text messages relating to the supply of prohibited drugs. They may be looking for text messages relating to a domestic violence offence.
There is no obligation on a person who is subjected to a search (other than a person who has been served with a DEAO) to provide their PIN and allow access to their phone. Currently there is no other legislation apart from Digital Evidence Access Orders under the Law Enforcement (Powers and Responsibilities) Act 2022 that force a person to divulge their PIN.
Something to keep in mind is the seizure power of police. If the circumstances are that the officer believes there is something of interest on your phone, they have the power to seize it and they will. Whilst no phone is impervious ‘hacking’, the advances in technology are making it easier for police to bypass your ‘secure’ PIN. Police all around the world, including all states in Australia, utilise software called Cellbrite. It is an ‘ethical’ forensic investigation tool which is extremely powerful and has a high success rate. No longer do law enforcement need to travel around the world to access your device.
To make your device more secure against access, ensure your PIN is at least six characters which is comprised of numbers and letters if possible.
Refusal to Comply with Digital Evidence Access Orders
Penalties for non compliance with a DEAO order is governed under Section 76AO of the Law Enforcement Powers and Responsibilities Act 2002 states:
(1) A specified person for a digital evidence access order must not, without reasonable excuse–
(a) fail to comply with a direction given, in accordance with the order, by the executing officer for the order, or
(b) give the executing officer information that is false or misleading in a material particular in purported compliance with a direction given by the executing officer, unless the person informs the executing officer the information is false or misleading.
The Maximum penalty for this offence is 100 penalty units and/or 5 years imprisonment.
Defences for not complying with a Digital Evidence Access Orders (DEAO)
Unlike a person’s right to silence in most situations, it is not a defence for failing to comply with this order if the evidence on the device would tend to incriminate the person or otherwise expose the person to a penalty. It was openly acknowledged within parliament before this legislation was enacted that this “may” impact on the right to silence of affected persons.
- Ownership of the device i.e. knowledge
- You can show on the balance of probabilities you have a reasonable excuse for your actions
- Duress
- Necessity
If you believe you have been searched unlawfully by police, contact Catron Simmons Lawyers.