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The Gardai should have no right to your phone password

One of the subjects that is consistently absent from real debate in Ireland is the question of civil liberties, and the limits that should be placed on the power of the state. Yesterday, the Irish Government announced that it intends to make it an offence to refuse to provide the Gardai with the password to your phone, so that they can unlock it, go through it, and find evidence against you which can then be used to prosecute you for committing a crime. This is, not to put too fine a point on it, an absolutely outrageous proposal.

Almost every country in the world requires its police force to provide to a person, upon their being arrested and charged, what the Americans refer to as “Miranda rights”. “You do not have to say anything unless you wish to do so, anything you do say may be used as evidence”, and all that. In the United States, they supplement this with the fifth amendment: A person can actually refuse to answer questions if answering a question might incriminate them.

Gardai cannot enter your home and search it without a warrant. They cannot compel your husband or wife to give evidence against you. They cannot torture you to get you to confess to a crime. Why, then, should they be allowed to go through your private communications?

People who instinctively support this proposal might make several arguments in its favour. They might say, for example, that in emergencies, accessing somebody’s phone might save a life: Imagine, for example, a kidnapped child, and the Gardai apprehending the suspected kidnapper. Their phone might have on it a record of the child’s location. Should they not have the power, then, to force the person to give them the password?

The problem with that argument, of course, is that a fine will make no difference. A person in a situation like that is already likely to be facing kidnapping charges. What difference will a fine for not handing over their phone password make? In any situation, in other words, where accessing this information is of vital, and urgent importance, it is highly unlikely that this proposal will make the slightest bit of difference.

The other argument might be that the Gardai can already use private communications in evidence – letters, diaries, notes, and so forth. The difference, though, is that Gardai cannot compel you to hand those over. They might get a warrant for a search, but they cannot say “give me your diary, we cannot find it” and fine you if you do not hand it over. With this proposal, they are actually turning the accused person into a participant in their own prosecution. The law would force people to co-operate with Gardai who are trying to put them in jail. That is very different from a court providing a search warrant.

Some crimes, people might say, can only be proved with the use of phone data. For example, possession of child pornography, or the sending of abusive messages, or making harassing phone calls. In most cases though, that is not true: Phone companies record calls and text messages sent and received, and can be compelled to hand those records over if necessary. In the case of people who purchase child pornography, credit card companies have records of transactions. Nearly all of these crimes can be proven without the need to access somebody’s phone.

The final argument, of course, is the oldest one: The question of “why does it matter if you have nothing to hide?” And the answer to it is just as old: because it is the job of the Gardai to prove that you are guilty, not the job of a defendant to prove that they are innocent.

In the 21st century, phones often contain detailed and intimate records of our lives: Romantic relationships, broken friendships, nude images, and so on and so forth. They are a blackmailer’s dream. Lots of perfectly innocent people have things on their phones which, if construed in a certain light, might make them look unsympathetic, or even guilty. For example, saying in a text message that you hate somebody is not a crime. But in a court of law, saying that you hate somebody is suddenly powerful evidence of motive. Accessing a phone can potentially turn even an innocent person into a witness in their own prosecution.

The Gardai do not need this power. They do not deserve it. As citizens, and individuals, we should be jealous about defending our rights, and keeping the Government at arm’s length. If the Gardai ever want your phone password, it will not be because they are your friends. It is in all of our interests to deny them the right to force you to hand it over.

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