The Occupy Wall Street movement is spreading. Protesters of all political persuasions are increasingly documenting their protests – and encounters with the police – using electronic devices like cameras and cell phones. The following tips apply to protesters in the United States who are concerned about protecting their electronic devices when questioned, detained, or arrested by police. These are general guidelines; individuals with specific concerns should talk to an attorney.
1. Protect your phone before you protest
Think carefully about what’s on your phone before bringing it to a protest. Your phone contains a wealth of private data, which can include your list of contacts, the people you have recently called, your text messages, photos and video, GPS location data, your web browsing history and passwords, and the contents of your social media accounts. We believe that the police are required to get a warrant to obtain this information, but the government sometimes asserts a right to search a phone incident to arrest — without a warrant. (And in some states, including California, courts have said this is OK.)
To protect your rights, you may want to harden your existing phone against searches. You should also consider bringing a throwaway or alternate phone to the protest that does not contain sensitive data and which you would not mind losing or parting with for a while. If you have a lot of sensitive or personal information on your phone, the latter might be a better option.
Password-protect your phone – and consider encryption options. To ensure the password is effective, set the “password required” time to zero, and restart phone before you leave your house. Be aware that merely password-protecting or locking your phone is not an effective barrier to expert forensic analysis. Some phones also have encryption options. Whispercore is a full-disk encryption application for Android, and Blackberry also has encryption tools that might potentially be useful. Note that EFF has not tested these tools and does not endorse them, but they are worth checking into.
Back up the data on your phone. Once the police have your phone, you might not get it back for a while. Also, something could happen, whether intentional or not, to delete information on your phone. While we believe it would be improper for the police to delete your information, it may happen anyway.
2. You’re at the protest – now what?
Maintain control over your phone. That might mean keeping the phone on you at all times, or handing it over to a trusted friend if you are engaging in action that you think might lead to your arrest.
Consider taking pictures and video. Just knowing that there are cameras watching can be enough to discourage police misconduct during a protest. EFF believes that you have the First Amendment right to document public protests, including police action.
However, please understand that the police may disagree, citing various local and state laws. If you plan to record audio, you should review the Reporter’s Committee for Freedom of the Press helpful guide Can We Tape?.
3. Help! Help! I’m being arrested
Remember that you have a right to remain silent — about your phone and anything else. If questioned by police, you can politely but firmly ask to speak to your attorney.
If the police ask to see your phone, you can tell them you do not consent to the search of your device. They might still legally be able to search your phone without a warrant when they arrest you, but at least it’s clear that you did not give them permission to do so.
If the police ask for the password to your electronic device, you can politely refuse to provide it and ask to speak to your lawyer. Every arrest situation is different, and you will need an attorney to help you sort through your particular circumstance. Note that just because the police cannot compel you to give up your password, that doesn’t mean that they can’t pressure you. The police may detain you and you may go to jail rather than being immediately released if they think you’re refusing to be cooperative. You will need to decide whether to comply.
4. The police have my phone, how do I get it back?
If your phone or electronic device was illegally seized, and is not promptly returned when you are released, you can file a motion with the court to have your property returned. If the police believe that evidence of a crime was found on your electronic device, including in your photos or videos, the police can keep it as evidence. They may also attempt to make you forfeit your electronic device, but you can challenge that in court.
Cell phone and other electronic devices are an essential component of 21st century protests. Whether at Occupy Wall Street or elsewhere, all Americans can and should exercise their First Amendment right to free speech and assembly, while intelligently managing the risks to their property and privacy.