Checkpoints occupy a unique position in the American justice system. At these roadside stations, where police question drivers in search of the inebriated or “illegal,” anyone can be stopped and questioned, regardless of probable cause, violating the Fourth Amendment’s protection against “general warrants” that do not specify the who/what/where/why of a search or seizure. Though the Supreme Court agrees that checkpoints skirt the Fourth Amendment, the Court has been clear that the “special needs” checkpoints serve, like traffic safety and immigration enforcement, trump the “slight” intrusions on motorists’ rights. We have checkpoints for bicycle safety, gathering witnesses, drug trafficking, “illegal” immigration and traffic safety. Many states, like California, require cops to abide by “neutral” mathematical formulas when choosing which drivers to pull over (like 1 in every 10 cars). In reality, these decisions are left to the discretion of individual police officers, which results in a type of vehicular stop and frisk. That’s why people in Arizona have sued the Department of Homeland Security for its wanton deployment of immigration checkpoints in their state. Among their complaints are racial profiling, harassment, assault and unwarranted interrogation, and detention not related to the express “special need” of determining peoples’ immigration status.
Silicon Valley’s smartphone snitching has come to an end. Apple and Google have promised that the latest versions of their mobile operating systems make it impossible for them to unlock encrypted phones, even when compelled to do so by the government. But if the Department of Justice can’t demand that its corporate friends unlock your phone, it may have another option: Politely asking that you unlock it yourself, and letting you rot in a cell until you do. In many cases, the American judicial system doesn’t view an encrypted phone as an insurmountable privacy protection for those accused of a crime. Instead, it’s seen as an obstruction of the evidence-gathering process, and a stubborn defendant or witness can be held in contempt of court and jailed for failing to unlock a phone to provide that evidence. With Apple and Google no longer giving law enforcement access to customers’ devices, those standoffs may now become far more common. “You can expect to see more cases where authorities are thwarted by encryption, and the result is you’ll see more requests that suspects decrypt phones themselves,” says Hanni Fakhoury, an attorney with the Electronic Frontier Foundation. “And by requests, I mean demands. As in, you do it or you’ll be held in contempt of court.” In some cases, the Fifth Amendment’s protection against self-incrimination may block such demands, under the argument that forcing defendants to unlock their phone would compel them to testify to their own guilt. But the few cases where suspects have pleaded the Fifth to avoid decrypting a PC—the legal equivalent of a smartphone—have had messy, sometimes contradictory outcomes. “This is not a settled question,” says James Grimmelmann, a professor at the University of Maryland Law School. And it likely won’t be, he says, until more appeals courts or the Supreme Court consider the issue. Grimmelmann does, however, offer one general guideline for whether a Fifth Amendment argument will keep the cops out of your locked phone and you out of jail: “If the police don’t know what they’re going to find inside,” he says, “they can’t make you unlock it.”