Police powers to search your phone and social media accounts

With smart phone technology advancing rapidly, most of us now carry our entire lives in our pockets. It’s therefore becoming increasingly common for the police to seize and search phones where they suspect the owner has committed or intends to commit a criminal offence.

If you’ve been arrested, stopped and questioned on the street, or are otherwise under suspicion of committing a criminal offence, it is critically important to understand your rights when it comes to refusing the police access to your mobile phone and social media accounts.

Your phone data can provide the police with extensive insight into your private life, movements, and day-to-day activities and could help them gather evidence in relation to a large range of criminal offences, including drug offences, fraud, organised crime, conspiracy offences, and even road traffic offences.

In particular, law enforcement authorities are taking steps to crack down on county lines drugs offences. County lines is a term to describe crimes associated with trafficking drugs and drug money across counties using dedicated mobile phone lines and children or vulnerable adults as transport. If the police suspect someone of committing a county lines offence, it is highly likely they will try to seize and search their phone for evidence.

At Conspiracy Solicitor, our specialist criminal defence solicitors can provide expert advice on police powers to search your mobile phone and social media accounts for evidence of criminal activity.

We will take all possible steps to protect your legal rights at every stage of the criminal justice system, including providing robust police station assistance and representation during court proceedings.

For specialist advice about the police’s powers to search your phone and social media accounts, give our criminal defence lawyers a call today. We are available 24 hours a day, 365 days a year to assist you.

We also have an out of hours phone line and urgent police station advice line.

Alternatively, please feel free to fill in our online enquiry form and a member of our team will be in touch shortly.

Can the police stop me and look through my phone?

The police have powers to stop and question you on the street at any time. Typically, you don’t have to answer their questions if you don’t want to. The police can also search you but only if they have reasonable grounds to suspect you’re carrying illegal objects such as drugs or weapons.

The police cannot stop you to search your phone without your consent. Exceptions include if they are able to justify using legal powers such as terrorism or child sex offence laws.

Another potential exception is if the police suspect the phone is stolen and their reason for searching you is to confirm that is the case (although it’s not fully established whether the police can search the phone itself).

Can the police search my phone if they suspect me of a drugs offence?

If the police stop you on suspicion of committing a drug-related offence, they may try to seize your phone under Section 23 of the Misuse of Drugs Act 1973. However, they can only do this if they have reasonable suspicion to believe it is evidence of a drugs offence.

In many situations, it’s debateable whether the police can use Section 23 to seize mobile phones. Therefore, if you have been stopped, searched, and had your phone looked through on this basis, get in touch with us as soon as possible for legal advice.

Do I have to give the police my passwords or PIN if they ask?

Before you’ve been arrested

As above, if the police stop you and ask to search your phone, you are allowed to say no unless they can, in limited circumstances such as suspicion of terrorism offences, justify a search.

After you’ve been arrested

If you’re arrested by the police, they will seize your mobile phone (along with your other personal belongings) and may want to access it to gather evidence of criminal activity.

Depending on your phone, there’s likely to be a degree of security, such as a PIN, password, fingerprint, pattern, or facial recognition to prevent third parties accessing your data. Your social media accounts will also be password protected (unless you are already logged in).

The police may ask you to unlock your phone and provide your social media passwords so your data can be searched. This can often place pressure on suspects who already feel distressed and vulnerable due to being in custody.

The most important thing to remember is, once the police have arrested and cautioned you, you do not have to answer any questions and you are entitled to independent legal advice.

This means you do not have to give the police your passwords or social media logins even if directly asked.

You should contact us as soon as possible upon your arrest so we can provide reliable advice about the best way to proceed during the police investigation.

Can I be arrested or charged if I refuse to give the police my passwords or PIN?

Typically, no, unless the police use legal search powers. For example, the police may use a piece of law called Section 49 of the Regulation of Investigatory Powers Act 2000 (RIPA) which makes it an offence if you refuse to provide access to your phone. If the police serve a notice under this law and you continue to refuse, you could be arrested and prosecuted.

The police can serve a Section 49 notice where there are reasonable grounds to believe:

  • That you have the passwords or PIN
  • The notice is necessary, for example, to protect national security or prevent or detect crime
  • That the notice is proportionate
  • That the required data cannot be obtained using other methods

The maximum sentence for failing to comply with a Section 49 notice is 2 years in prison. There is evidence to suggest that use of Section 49 has increased in recent years and can be used in a wide range of situations, including where the subject is suspected of drug offences.

If you’ve been served with a Section 49 notice, it’s important to contact our criminal defence solicitors as soon as possible for advice about what to do.

What data can the police get from my phone?

The police can often obtain information about nearly every area of a person’s life simply by looking through their phone. Data they can get includes:

  • Social media activity
  • Photos
  • Messages to and from other people
  • Contact details for your friends, family, and acquaintances
  • Emails
  • Browsing history
  • Location data
  • Calendar
  • Third party apps, including WhatsApp
  • Shopping habits
  • Banking
  • “hidden” data such as deleted messages and photos

Can the police seize my phone data if I don’t give them the password?

Even if you do not provide the police with passwords to unlock your phone, unless the data is encrypted, there may still be ways it can be accessed using modern technology.

Once lawfully accessed, your data could be used as evidence during criminal investigations. For example, location data could be used to confirm you were in a certain place at a certain time, or messages between you and other people could implicate you in an offence.

Can the police access my social media data?

If the police suspect you have committed an offence, they may try to obtain data from your social media accounts. It goes without saying that they can view anything you post publicly. However, the police may also be able to access your private data.

One way to do this is to seize your phone after you’ve been arrested to directly access your accounts. The other way is to approach the social media companies directly to request your data.

Facebook, Messenger, WhatsApp and Instagram data

As Facebook owns Messenger, WhatsApp and Instagram, the policies relating to disclosure of data to law enforcement are broadly the same.

Facebook’s policy is to access and share your information in the following circumstances:

  • Where a legal request has been made – because Facebook is an American company, the police must make a Mutual Legal Assistance request via the Government to access any data. This can be a lengthy process, taking anywhere from 6 months to 2 years. However, on 3 October 2019, the UK and US entered into the Bilateral Data Sharing Agreement which will allow the police to apply directly to Facebook, speeding up the process
  • In an emergency situation – if Facebook believes in good faith that there is a risk of serious injury or death or imminent harm to a child, it will release your data without a Mutual Legal Assistance request

It is highly likely that Facebook will release at least some private data to the police if requested. Statistics released by Facebook show that from the period July-December 2018, authorities in the UK submitted 7,218 requests for information (either using a legal process or via an emergency request). Facebook provided data in 91% of these cases.[1] 

Encrypted data

As WhatsApp is owned by Facebook, it will hand over data to the police under the same policies as above. However, as WhatsApp is end-to-end encrypted, the police won’t be able to read your conversations with other people.

The information they can access includes:

  • Your name
  • Your mobile number
  • IP addresses
  • Locations
  • Your contacts
  • Data from web pages accessed via the app
  • The time and duration of your conversations
  • Contact details for the people you speak with

The only way the police can access the content of your conversations is if they directly open the app using your phone.

Conversely, Facebook Messenger is not end-to-end encrypted by default. This means the police can access conversation content unless you turn on the “secret conversations” feature which will enable encryption.

If you would like further information about Facebook’s end-to-end encryption policy, feel free to read our blog post on the subject.

Snapchat

Snap Inc, the company which owns the Snapchat app, also has policies to release data to law enforcement if necessary. Again, as Snap Inc is an American company, the police must go through the Mutual Legal Assistance Treaty process to request information.

The exception is emergency requests where the company believes in good faith that there is an emergency posing a risk of imminent death or serious bodily injury which justifies releasing data.

Even if Snap Inc agrees to release some data, the police may only be able to access your “Snaps” or “Chat” content in limited circumstances. This is because once a Snap has been opened by all recipients, it is permanently deleted. If at least 1 recipient doesn’t open the Snap, it only remains on Snap Inc’s servers for up to 30 days and if the Snap has been posted to the user’s “Story”, it will be deleted after 24 hours. Similarly, the police will only be able to access Chat content if you or the recipient have chosen to save it.

Can I access my personal data held by the police?

If you’ve had dealings with the police, you have a right to access the personal information held about you.

In most situations, you will need to make a request to your local police force for data held on local systems. Alternatively, contact ACRO (Criminal Records Office) to access data held on national records.

What should I do if the police want to access my phone?

If the police want to access your phone, it likely means they are gathering evidence which could be used to charge you with a criminal offence.

We recommend that you get in touch with our criminal defence solicitors as soon as possible to help you prepare for and preferably prevent the police taking any action against you.

Why choose our criminal defence solicitors?

At Conspiracy Solicitor, we are a team of specialist criminal defence solicitors based in Grantham, Lincoln and Newark in the East Midlands. We provide expert advice and representation to clients who are under investigation or have been charged with a vast range of criminal offences, including drug offences, county lines offences, fraud, road traffic offences, and conspiracy offences.

We are Law Society Accredited in Criminal Litigation for our skills and our strong track record of helping clients achieve positive results. In many cases, we’re able to successfully end criminal investigations at the police station without any charges being brought.

We will be by your side through every step of the criminal justice process and we can travel to police stations and courts across the UK to assist you.

Get in touch with our criminal defence solicitors

For specialist advice about the police’s powers to search your phone and social media accounts, give our criminal defence lawyers a call today. We are available 24 hours a day, 365 days a year to assist you.

We also have an out of hours phone line and urgent police station advice line.

Alternatively, please feel free to fill in our online enquiry form and a member of our team will be in touch shortly.