About two weeks ago, a police detective suspected of taking bribes from a brothel owner was being interrogated by the Justice Ministry unit that investigates police misconduct. The investigators demanded that the detective, Dvir Alon, give them access to his smartphone, which was locked via fingerprint.
When he refused, an investigator reportedly tried to grab his hand and force him to open the phone. Another threatened the burly detective: “If we have to, we’ll bring in 10 investigators to force you to unlock the phone.”
On the advice of his lawyer, Alon refused to cooperate, even at the cost of having his detention extended. It was claimed that he was obstructing the investigation concerning the brothel in Rishon Letzion, and he is now under house arrest – a development abetted by a ruling on the phone issue by the Tel Aviv District Court.
“I advised my client to resist passively,” said Alon’s lawyer, Sharon Vaknin. “If anyone comes to me on a similar matter my advice will be unequivocal: resist. No police or investigative unit has any legal right to take a person’s fingerprint against his will to unlock his phone.”
Haaretz also has obtained documents on the practice as formulated by the Justice Ministry unit investigating police misconduct and Assistant Attorney General Amit Merari.
Last year, the police launched a controversial procedure that defense attorneys have disputed in court. The controversy began that January, when a suspect was arrested in south Tel Aviv for possession of 37 grams of hashish. The police received a search warrant for the suspect’s phone, which was fingerprint-locked.
The police asked the court to let them use force to make the suspect place his finger on the phone, citing the police’s permission to search a home if they have a warrant, and forcibly enter if necessary. A judge at the Tel Aviv Magistrate’s Court, Efrat Bousani, rejected this argument, and the police took the case to the district court, which ruled in their favor.
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There, Judge Tali Haimovich Livnat ruled that “reasonable force” may be used on a suspect in what the law describes as an “external search” that “does not overly violate the suspect’s rights and when rejection of the warrant leads to serious and needless harm to the investigation.”
So far the police have taken advantage of Haimovich Livnat’s ruling in other cases, though the exact number is unknown. Alon's arrest in the brothel case shows that this practice has moved into the interrogation rooms of the Justice Ministry unit that investigates police misconduct.
In a statement to Haaretz, the police noted that their position has been “approved by a district court.”
‘We’ll break your finger’
Critics in the justice system consider this practice a violation of a suspect’s right to avoid self-incrimination. Opponents fear a slippery slope and wonder what would happen to a suspect whose phone, for example, was locked via voice command. Could force be used to make suspects utter a sound to unlock a phone?
One of the most outspoken opponents of the practice is Judge Guy Avnon of the Rishon Letzion Magistrate’s Court. Avnon, once a criminal defense attorney, believes that legislation should be passed regarding the use of force to unlock and search a phone.
Two months after Haimovich Livnat’s ruling, a case came before Avnon concerning Telegrass, a company that allows the ordering of marijuana via encrypted messaging. Police interrogators told the suspect, “We’ll break your finger if you don’t unlock the phone.” The suspect eventually had to give the police access.
Avnon came out even more strongly when Alon’s case came before him. After the police tried to force Alon to unlock his phone, Avnon banned them from using this practice until the issue could be brought back to a higher court.
“I find the police’s conduct difficult when this is done unilaterally without specific attention from the legislature,” he said.
One document on the practice, as crafted by the Justice Ministry unit investigating police misconduct and the assistant attorney general, states that force should be used from the moment the phone is confiscated. That is, when the police raid a person’s home and make the arrest.
The reason is clear: At that point, suspects probably have not had a chance to contact a lawyer, who would certainly advise them not to cooperate. Many suspects are unaware that they have the right to refuse to unlock their phones.
The document, written by the head of the Justice Ministry unit, Brig. Gen. David Buani, states that when a suspect refuses to provide a password for a phone or open it with a fingerprint, force may be used. Such force “will be restricted to the limited and minimal force necessary to achieve the outcome” and “in no case will force be used that endangers human life or causes bodily harm.”
Buani recommends that after the phone is unlocked, an app should be opened that keeps it unlocked, such as Waze or YouTube, so force need not be used again to unlock it.
A quick and cheap solution
If they have a warrant, the police have the technology to break into fingerprint-protected phones, an action usually undertaken by an outside company. But this costs money and time, and the attempt often fails. It is unsurprising that the policewould prefer to take a quicker, more comfortable route.
“With all due respect to the brigadier general, he is not above the law and can’t authorize any police official to use unnecessary force,” said Vaknin, Alon’s lawyer. “The police’s powers to use force are defined by law; for example, to make an arrest, but from the moment a person is arrested, force must not be used.”
Vaknin is not alone in his opposition to the practice. The head of the department that represents prisoners at the Public Defender’s Office, Gil Shapira, says that in using force, the police “are relying on an archaic law that obviously didn’t predict searches of smartphones or security locks.”
The analogy to using force to enter a home to search is inaccurate, Shapira says, “because if the police want to break into a safe they can move aside a person who is obstructing them, but they may not use force or torture a person to force him to give them the combination to the safe.” Shapira also cites a person’s right to avoid self-incrimination as an argument against use of force in this context.
Shapira adds that a person's whole life can be found on their phone, and that the police are not limited in their search. "Even if the police claim in court that they will limit their search, in practice, they copy all the content on the phone to their computers. The damage has already been done."
“Violence and interrogation don’t go together,” said the head of the Israel Bar Association, Avi Himi.
The Israel Police responded: “The position of the state is that the power for law enforcement to use force is enshrined in clause 45 of the Penal Code. Since this power is given to law enforcement, there is no need to ask a court to implement it. This position has been … approved by a district court. In the case in question as well, the court made clear that it does not express a position on the matter and if the investigators wish to hold a hearing and receive a ruling, they may submit a request.”