With the proliferation of personal technologies, protesters of all political persuasions are increasingly documenting their protests—and encounters with the police—using electronic devices like cameras and mobile phones. In some cases, getting that one shot of the riot police coming right at you posted somewhere on the Internet is an exceptionally powerful act and can draw vital attention to your cause.
The following are useful tips for you to remember if you find yourself at a protest and are concerned about protecting your electronic devices if or when you’re questioned, detained, or arrested by police. Remember that these tips are general guidelines, so if you have specific concerns, please talk to an attorney.
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 and email, photos and video, GPS location data, your web browsing history and passwords or active logins, and the contents of your email and social media accounts. Through stored passwords, access to the device can allow someone to obtain yet even more information on remote servers.
The United States Supreme Court recently held that the police are required to get a warrant to obtain this information when someone is arrested, but the exact limits of that ruling are still being examined. In addition, sometimes law enforcement will seek to seize a phone because they believe it contains evidence of a crime (such as photos you may have taken of the protest), or as part of a vehicle search. They can then later get a warrant to examine the phone that they’ve already seized.
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, which you’ve never used to log in to your communications or social media accounts, 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-protection and encryption options: Always password-protect your phone. Be aware that merely password-protecting or locking your phone is not an effective barrier to expert forensic analysis. Android and iPhone both provide options for full-disk encryption on their operating systems, and you should use them, though the safest option remains leaving the phone elsewhere.
One problem with mobile phone encryption is that on Android the same password is used for disk encryption and screen unlocking. This was a bad design, because it forces the user to either select a too-weak password for the encryption, or to type a too-long and inconvenient password for the screen. The best compromise may be 8-12 fairly random characters that are nonetheless easy to type quickly on your particular device. Or if you have root access to your Android phone and know how to use a shell, read here. (See also "Communicating with Others” for details on how to encrypt text and voice calls.)
Back up your data: It’s important that you frequently back up the data stored on your phone, especially if your device lands into the hands of a police officer. You may not get your phone back for a while (if at all) and it is possible that its contents may be deleted, whether intentional or not. While we believe it would be improper for the police to delete your information, there’s a chance it could happen.
For similar reasons, consider writing one important, but non-incriminating phone number on your body with a permanent marker in case you lose your phone, but are permitted to make a call.
Cell site location information: If you take your mobile phone with you to a protest, it makes it easy for the government to figure out that you are there by seeking the information from your provider. (We believe that the law requires the government obtain an individualized warrant to obtain location information, but the government disagrees). If you need to keep the fact of your participation in a protest from the government do not take your mobile phone with you. If you absolutely must bring a mobile phone with you, try to bring one that is not registered in your name.
You may not be able to reach colleagues if you are detained. You may want to plan a pre-arranged call after the protest with a friend—if they don’t hear from you, they can assume you’ve been arrested.
You’re at the Protest – now What?
Maintain control over your phone: Maintaining control might mean keeping your 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 documenting the event can be enough to discourage police misconduct during the 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 this helpful guide, the Reporter’s Committee for Freedom of the Press’ Can We Tape?.
If you want to keep your identity and location secret, make sure to strip all metadata off of your photos before you post them.
In other circumstances, metadata can be useful for demonstrating the credibility of evidence collected at a protest. The Guardian Project makes a tool called InformaCam that allows you to store metadata along with including information about the user’s current GPS coordinates, altitude, compass bearing, light meter readings, the signatures of neighboring devices, cell towers, and WiFi networks; and serves to shed light on the exact circumstances and contexts under which the digital image was taken.
If you take photos or video, the police may also seek to seize your phone to obtain the material as evidence. If you are engaged in journalism, you may be able to assert the reporter’s privilege to protect your unpublished material. The RCFP has a guide explaining the Reporter’s Privilege in various states.
If you are concerned about being identified, cover your face so that you cannot be identified from photos. Masks may get you into trouble in some locations due to anti-mask laws.
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 and politely but firmly request that all further questioning stop until your attorney is present. It is best to say nothing at all until you have a chance to talk to a lawyer. However, if you do decide to answer questions, be sure to tell the truth. It is likely a crime to lie to a police officer and you may find yourself in more trouble for lying to law enforcement than for whatever it was they wanted on your computer.
If the police ask to see your phone, you can tell them you do not consent to the search of the device. They might still be able to search your phone with a warrant after 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 (or ask you to unlock it), you can politely refuse to provide it and ask to speak to your lawyer. If the police ask if a phone is yours, you can tell them that it is lawfully in your possession without admitting or denying ownership or control. Every arrest situation is different, and you will need an attorney to help you sort through your particular circumstance.
Ask your attorney about the Fifth Amendment, which protects you from being forced to give the government self-incriminating testimony. If turning over an encryption key or password triggers this right, not even a court can force you to divulge the information. If turning over an encryption key or password will reveal to the government information it does not have (such as demonstrating that you have control over files on a computer), there is a strong argument that the Fifth Amendment protects you. If, however, turning over passwords and encryption keys will not result in a “testimonial act,” for instance demonstrating that you have control over the data, then the Fifth Amendment may not protect you. Your attorney can help you figure out how this applies in a particular situation.
And just because the police cannot compel you to give up your password, 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.
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 have your attorney 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 phones and other electronic devices are an essential component of 21st century protests. Everyone in the United States, both citizens and non-citizens, can and should exercise their First Amendment right to free speech and assembly, and hopefully the above tips can be a useful guide for you to intelligently manage the risks to your property and privacy.