As civil unrest flared across the United States following the police killing of George Floyd in Minneapolis, videographers and photojournalists—both professional and amateur—found themselves targeted by police for arrests, beatings, and harassment. Increasingly, journalists on the scene of civil unrest rely on smartphones as their primary tool for gathering and disseminating news. The advent of “smartphone journalism” presents an evolving set of legal and technological questions: Under what circumstances could a police officer compel a journalist to surrender and unlock a smartphone, and are some security measures more durable than others in standing up to a demand that might compromise confidential newsgathering materials? In short, how can mobile
journalists most effectively use technology and the law to keep their confidences secure at a time when confrontations with police are increasingly routine and predictable? This Article attempts to answer that question.
Courts overwhelmingly agree that the First Amendment protects the right to record police activity in public spaces. But it is less clear whether and under what circumstances journalists have a constitutionally protected right to resist having their work product searched when they are eyewitnesses to potential criminal activity, such as looting or throwing objects at police. The first generation of “smartphone law” cases has produced diverging results: Some (but not all) judges regard the compelled unlocking of a secured device as implicating Fifth Amendment safeguards against selfincriminatory testimony, as well as Fourth Amendment guarantees against unreasonable search and seizure. A little-known federal statute, the Privacy Protection Act (“PPA”), provides an additional potential layer of protection—or after-the-fact recourse—for a journalist who is subjected to an intrusive search for unpublished work. However, a recent court interpretation threatens to undermine the reliability of PPA protection when journalists are not just witnesses but also arrestees.
This Article surveys the landscape of constitutional and statutory claims that might apply when a journalist is confronted with a demand to decrypt a smartphone for police inspection. Additionally, this Article examines the pro-and-con arguments for the two primary security methods—alphanumeric passcodes and biometric locks—and how courts have treated those unlocking methods for Fourth and Fifth Amendment purposes. Lastly, this Article concludes that journalists assigned to scenes where clashes between police and protesters are foreseeable should anticipate facing a demand to surrender a phone—or face an arrest—and take precautions, knowing that after-the-fact damages as remedies against police are, after the Supreme Court’s recent ruling in Nieves v. Bartlett, increasingly unreliable.
Author: Frank D. LoMonte and Philip J. Sliger
Volume 23, Issue 2