Privacy After Death a Gray Area for US Law Enforcement

Smartphones are increasingly important, allowing people to stay connected to friends, family, and events in the world. As the technology has continued to advance, and smartphones have become more intertwined in our daily lives, manufacturers have developed more complex means to keep the data stored on them secure. These security measures have ensured a form of privacy after death, locking away a phone’s digital information from prying eyes.

This is an evolving technological roadblock that US law enforcement has struggled to keep up with. Fingerprint scanners, and facial recognition software have posed new challenges on top of traditional password locks. Operating systems designed to lock phones down and delete data in response to failed logins has prompted concerns among investigators that information critical to criminal cases could be permanently lost.

As various law enforcement agencies look to hack into phones owned by terrorists and gunmen, the public has given little thought to the privacy concerns raised. The 4th Amendment is intended to protect the right to privacy, but privacy after death has long been a murky area in the United States. From international superstars, to petty criminals, the law is nowhere near as clear as some would like it to be.

Newer methodologies and tactics adopted by investigators to circumvent phone security has made it clear that law enforcement is willing to work in legal gray areas, and even challenge the right of manufacturers to secure their products. The San Bernardino terrorist attack in December 2015 prompted the FBI to pay hackers to unlock an iPhone. Meanwhile, the US Department of Justice has accused Apple of designing software that interferes with the execution of search warrants.

Florida police attempt to circumvent fingerprint lock of smartphone after fatal shooting

On March 23rd, police officers in Largo, Florida shot and killed 30-year-old Linus Phillip. Officers confronted him for potentially illegal tinting of his car’s windows. During conversation, one officer smelled marijuana inside the vehicle. Phillip would attempt to escape, driving away while one officer was partially in the vehicle. Fearing for his life, the officer drew his weapon as he was being dragged by the car, firing four shots. Despite medical attention provided on the scene, Phillip would die of his wounds.

Florida State Attorney Bernie McCabe determined that the shooting was justified in April, and this is where many such tragedies typically end. However, Largo police detectives attempted to use the deceased’s fingerprints to unlock his cell phone. A member of Phillip’s family happened to be present at the funeral home when detectives arrived. The detectives were lead to the body, and proceeded to hold Phillip’s hand to the fingerprint scanner on the phone. The phone remained locked.

The detectives had not applied for a warrant, and Phillip’s family members were upset by the insensitive treatment of the body. However, while the detectives’ actions could be described as ghoulish or inappropriate, they are legal. The motivations behind their act can be justified by the law, but those justifications are now subject to increasing scrutiny.

The law both supports and undermines privacy after death

The Federal Privacy Act has made it clear that 4th Amendment rights apply only to living persons. Conversely, multiple court cases have set precedents indicating some post-death rights to privacy, particularly when surviving family members are affected.

Throwing an additional wrench into the mix is the Freedom of Information Act. Originally designed to ensure government transparency for citizens, the act potentially violates a living person’s right to privacy. Any FOIA request must be weighed against that standard. The most famous case impacted by FOIA privacy concerns involved the death of Vince Foster, an attorney who worked for Bill Clinton’s presidential campaign briefly before committing suicide in 1993. Conspiracy theorists in 2004 made a FOIA request to uncover the “truth” about Foster’s death. The U.S. Supreme Court unanimously ruled that the request could not be granted.

Further complicating the issue is the Health Insurance Portability and Accountability Act. HIPAA states that a person’s right to privacy for medical information extends indefinitely. Even after death, control of that information legally passes to those in control of the person’s estate.

The treatment of public figures postmortem further muddles the subject. From musicians to political figureheads, more reveals about their character happen after they pass away. Privacy after death for a superstar is rarely a concern for the greater public, but the occasional bombshell revelation or misstatement can result in legal actions and out-of-court settlements.

Unlocking the phones of the deceased has become a business

Inevitably, the needs of law enforcement will be fulfilled by those enterprising enough to turn a profit. A combination of security flaws and law enforcement’s desire to see what is locked away on a phone has proven fertile ground for some entrepreneurs. When the FBI could not make Apple budge in the wake of the San Bernardino shooting, a private company was paid $1.3 million to unlock the shooter’s phone.

Modern society has gone mobile, with smartphones becoming the norm for people of all walks of life. The federal government has long sought the means to police and collect the data passed between these devices. For now, there are several legal arguments to be made in the government’s favor. But as cases like Linus Phillip’s show, the right to privacy after death, for both the deceased and their families, is still up for debate. Any proposed laws or regulatory solutions will inevitably affect phone owners, manufacturers, and law enforcement officials alike.

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