The ability of police to force a person to unlock their phone has improved since the recent introduction of digital evidence access order legislation in New South Wales.
This has extended police powers, allowing law enforcement to compel individuals to provide passcodes to electronic devices.
The are hefty penalties including fines and imprisonment for a failure to comply with these orders, or providing false or misleading information.
Can police force you to unlock your phone?
Police can require you to unlock your phone if they issue you with a digital evidence access order unless you have a ‘reasonable excuse’ for not complying with the order. This also allows the police to force you to unlock your phone using a fingerprint or face ID. This power is contained in section 76AO of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
A reasonable excuse does not include concerns about self-incrimination, thus overriding the common law privilege against self-incrimination.
A digital access evidence order is usually accompanied by a search warrant.
Section 76AF of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) outlines the requirements when applying for a digital evidence access order, including:
- details of the search warrant or crime scene warrant to which the application is connected,
- details of the person the order will be issued to, and
- the grounds on which the application is based.
While officers applying for an order are not required to release the details of their informants, it is an offence for an officer to provide false or misleading information in their application. This can result in a maximum penalty of 2 years of imprisonment and/or a fine of $11,000.
What is a Digital Access Evidence Order?
A Digital Evidence Access Order is a legal power that allows police to require a person to assist in accessing digital devices, such as smartphones, tablets, or computers. This assistance often includes providing passwords or any necessary information to unlock the device. The order may also compel the individual to help law enforcement copy data from the device or convert the data into a format that can be read or used by a computer.
This was introduced under the Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Act 2022 (NSW), which amended the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The new provisions came into effect on February 1, 2023. The purpose of these orders is to enable law enforcement to access potentially crucial digital evidence in cases where devices contain relevant information.
What is the penalty if I refuse to give police my password?
If you refuse to provide your password to police you could face a maximum penalty of a $11,000 fine and/or 5 years imprisonment.
Why were the laws introduced?
The new laws in New South Wales were introduced to align state legislation with recent amendments to Commonwealth laws. These amendments allow NSW police to direct individuals to provide access to electronic devices when investigating NSW offences that have a federal aspect.
Deputy Premier and Minister for Police, Paul Toole explained that the laws were designed to address the limitations faced by police in accessing digital evidence, as officers previously had limited options to compel individuals to disclose passwords or other access codes. The introduction of digital evidence access orders provides police with a new tool to obtain necessary assistance in accessing devices during investigations, such as providing passwords or other required information.
This is particularly important as modern criminal investigations frequently involve digital devices protected by various security measures. The new regime allows these orders to accompany search or crime scene warrants, facilitating the collection of digital evidence like how search warrants are currently handled.
Can police access your phone in Australia?
In Australia, police can access your phone if they obtain a data access order. Such an order can only be issued against a person suspected of committing an offence punishable by at least five years in prison and who has the necessary knowledge to access the device.
Once a magistrate issues the order, it is a criminal offence to disobey it, with a maximum penalty of five years imprisonment. Additionally, under Section 3LA of the Crimes Act 1914, law enforcement officers can require individuals to provide encryption keys, PINs, or passwords to access information on a device for investigating and prosecuting computer-related offences. Refusing to comply with such a request can result in up to six months of imprisonment.
How long can police keep your phone for investigation?
Police can keep your phone if it contains relevant evidence as long as criminal proceedings are ongoing. If there is no relevant evidence on the phone, the police should return it after completing their analysis. If they refuse to return it, you can apply to the court for its return. An experienced criminal lawyer in Sydney will be able to act for you and make an application for the return of the phone.
However, if the phone contains relevant evidence, the police can keep it until your legal case is resolved, whether you are acquitted or found guilty and sentenced. If acquitted, you are entitled to have your phone back. If found guilty, the phone may not be returned, as it could be retained for potential appeals or retrials, or it may even be forfeited or destroyed.
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