Are the Contents of my iPhone Protected by the Fifth Amendment?

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

The question is: if I lock my iPhone with the intent of keeping its contents a secret, can I be compelled to unlock it? Or, before or after my death, can the government legally hack into my iPhone in order to reveal its contents?

In most cases, I believe the answer to be "no". I believe that hacking into someone's personal cell phone is tantamount to forcing him to testify against himself. And, the simple act of putting a password and encrypting the contents of a cell phone is a statement that should be interpreted to mean, "I wish to invoke the rights afforded me by the Fifth Amendment and not allow my phone to bear witness against me."

Our personal cell phones are almost like extensions of our brains in the extent to which we use them to think, muse, comment, plan and remember things about our lives. That is a big part of the reason why the password and encryption that we place on them should be protected by our 5th Amendment right against self-incrimination, in spite of the difficulties that this might cause for law enforcement.

Ironically, in the case of the San Bernardino shooter's iPhone 5c (which is the reason that this issue is currently in the news), I believe that the government has every right to compel Apple Computer to unlock the phone if Apple has it in their ability to do so, BECAUSE THE SHOOTER WAS USING HIS WORK PHONE WHICH WAS, AND IS, PROPERTY OF THE STATE OF CALIFORNIA, AND ON WHICH HE COULD HAVE NO EXPECTATION OF PRIVACY.

So, I expect Apple to lose this case and ultimately unlock the shooter's phone for the FBI. I also believe that the contents will not reveal anything new because the shooter had set up the phone to sync to iCloud (the FBI only wants the data since the last web sync) and knew that the phone was legally not even his. Therefore, I find it difficult to imagine that he could have been using it for any nefarious purpose.

When considering points of law such as this, I like to transport myself back in time and try to find useful analogies to 18th century jurisprudence. The closest analogy to a locked iPhone is a padlocked personal diary. It is my opinion that the contents of one's personal diary should be inadmissible in court unless the defendant has made prior reference to the diary, or used certain entries in support of his defense, in which case the entire diary would be in play. Since it can be reasonably imagined that one's personal cell phone could contain private thoughts and musings, a simple statement to that effect by the defense should render its contents safe from prying eyes on 5th Amendment grounds.

While this clearly represents a serious setback to law enforcement and the prosecution in certain cases (and, in fact, does so on a regular basis), we must remember that it is the communication that occurs between the cell phone and other phones or through the Web that are of most interest, and these communications are NOT shielded by the 5th Amendment. While the government may not be able to legally force a defendant to turn over the password to his private phone, they can certainly get a warrant to monitor and log all his data and voice communications, which could help them build a case. And, IF THOSE COMMUNICATIONS SHOW THAT THE DEVICE (iPHONE, CELL PHONE, ETC.) WAS USED IN THE COMMISSION OF A FELONY, THEN THE DEVICE ITSELF, INCLUDING ALL CONTENTS THEREIN, ARE FAIR GAME.

So, while one's personal diary, or personal cell phone, in most cases should be shielded from prying eyes by the Fifth Amendment, there are circumstances in which these protections would not apply.