As in: My phone was just confiscated, but not before I shut it off. If they wanted to look through it without a warrent, can they force me to decrypt it?

EDIT: USA is country-of-residency

  • Are you a minor? In what kind of school, and in what country? – feetwet Feb 10 '17 at 21:43
  • As a general rule, physical force cannot be applied without due process, though I know a few countries where that isn't so. – user6726 Feb 10 '17 at 21:59
  • If you can't specify a country, this is far too broad to be answered effectively. In some countries the school cannot enforce this at all and is acting illegally to even try, in others it is either at discretion or at will of the administration. – Nij Feb 10 '17 at 23:12

Public schools are on a shorter legal leash than private schools are, because they must behave like proper governments do and respect the constitutional rights of their charges. (First Amendment rights are much broader in public schools than they are in private schools). Assuming that we're in a public school, a search of your phone is governed by a watered-down version of the 4th Amendment. They may search your phone if they have a reasonable suspicion that there is evidence of a violation of the law or a school rule, but this is passive with respect to you providing information -- if the phone is on, they can snoop around if they have a reasonable suspicion.

The 5th Amendment would be relevant to passcodes: they cannot compel you to give up your passcode. If there was plainly-visible evidence of wrongful activity on the phone which they saw, and then you shut the phone down, then analogous to in re Boucher the courts could order you to reveal your password, under the "foregone conclusion" doctrine. However, it's the courts and not the schools who get to make that determination.

One way the school could literally force you, bypassing the legal system, would be to physically threaten you, by beating you or threatening you with a gun or whip. Such physical coersion would be a felony, and it is almost inconceivable that they would do that. What they might maybe do is give you a non-physical ultimatum, of the type "decrypt the phone / reveal the password or we will... expel you / fine you / fail you in your English class / not let you go to any more football games / turn the phone over to the police". The question is, what would be legal versus illegal by way of consequences?

I know of no constitutional right to attend football games anywhere, so they might well be able to get away with that deprivation. You might have a contractual right to attend games at a private school. With a private school, there is some contractual agreement between the school and you (least likely, assuming you're a minor) or your parents~guardians (most likely). That contract could imply certain rights, such as attending games, and might spell out a procedure for them to terminate that right. If they don't follow the process, they could be in breach of contract. Apart from contractual rights (which probably involve your parents, not you, but also would be considerable, for example the right to attend and be graded fairly in the English class), you have no protected rights.

As you can see, the answer has a lot of "it depends" in it. Suppose your public school had a reasonable suspcion that you had engaged in a criminal activity, and might prove that by looking at the phone – which you shut down. They cannot use physical force against you, but they can try to persuade you, by offering you something that you want which they can legally take away – like attending a football game. If they try to deprive you of something that you have a right to, you can sue them to prevent that. However, they can also seek a court order to compel you to reveal the password, and it is certainly not illegal to inform you that if you don't unlock the phone, they will seek a court order. Whether or not the courts will grant the request is not obvious (incidentally, if the device is fingerprint-protected, you are hosed, since forcing a person to prove fingerprints is not against the 5th). If the school can be very specific about having seen criminal evidence, they have a leg to stand on, otherwise you cannot be compelled to testify against yourself (coughing up a password is a form of testifying against yourself).


I don't think mine will be the best answer, but it's worth noting that case law states that children do not “shed their constitutional rights at the schoolhouse gate” from Tinker vs. Des Moines Indep.Community Sch. Dist., 393 U.S. 503, 506 (1969) - however that seems to be a 1st amendment issue.

As to the legality of searches in schools the Supreme Court states in New Jersey vs. TLO 469 U.S. 325 in 1985 held that the Fourth Amendment’s prohibition against unreasonable searches and seizures applies to school officials and is not limited to searches performed by law enforcement. It seems to say that school employees act as agents of the state when they perform their duties of the school.

It looks like the standard for a school employee to search is not probable cause, but rather if the search is 'reasonable' - which gives a wide range of areas open to interpretation. I would highly doubt they could force you to decrypt it. After all, you might have forgotten your password.

  • Teachers in a private school would not represent nor be acting on behalf of the state, so I don't see any relevance of the Fourth to those cases. It might be better to quote the reasoning and context of that case, for those who have difficulty looking it up. And also to make it clear the answer as a whole only applies in the USA, since at this point the question is left open globally. – Nij Feb 10 '17 at 23:14
  • What happens, if at the end of the day, after it was taken for some reason, and it was factory reset, because they had entered the wrong code too many times? is there something i could do to take action against the school district? – Xeanto Feb 11 '17 at 0:23
  • Tinker v Des Moines almost certainly would not apply. Since the phone was confiscated, it is safe to assume the school viewed the student's behavior as disruptive. Which means Hazelwood v. Kuhlmeier applies. Which determined that schools have the right to suppress speech if it is "reasonably related to legitimate pedagogical concerns." I doubt they can arrest property though unless it was done by a police officer embedded in a school. They can try to call the police and surrender the phone to them. Otherwise, they would have to return the phone if a parent requested it. – grovkin Sep 12 '20 at 11:52

First and foremost - encrypt everything. The law continues to protect the interests of people who take steps to secure their communications and data. I see it each day as I research and draft motions for counsel.

Second, and a close tie with my first point: Public school administrators are state actors for purposes of the Fourth Amendmentandare subject to the constitutional prohibition on unreasonable searches and seizures. New Jersey v. T.L.O., 469 U.S. 325, 333-334, 341 (1985). See alsoCommonwealth v. Damian D., 434 Mass. 725 (2001); Commonwealth v. Carey, 407 Mass. 528, 530-531 (1990).

Third, attending school or a college does not waive your Fourth or Fifth Amendment right.Students do not“shed their constitutional rights . . . at the school house gate.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969). Just as police can take your phone, a school administrator may be able to if a minor, especially if there is a 'no phone' policy in class or the allegation is the phone was used to violate school policy (i.e. bullying). However, physically taking the phone does not include the obligation of the student to surrender a password or biometric data.

Fourth, keep in mind, because students are subject to numerous regulations on their behavior when they are in schooland because school officials need to maintain order in school, a student‟s reasonable expectation of privacy is lower than that enjoyed by the populous generally. T.L.O., 469 U.S. at 348 (Powell, J., concurring); Vernonia School District No. 47J v. Acton, 515 U.S. 646, 657 (1998)

The Fifth Amendment guarantees that “[n]o person shall be . . . compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. To successfully invoke the self-incrimination privilege, an individual must show: (1) compulsion, (2) a testimonial communication, and (3) self-incrimination. United States v. Hubbell, 530 U.S. 27, 34 (2000). It is important to note the Fifth Amendment does not have an age attached to it. Be it a minor or adult, in my humble view, it applies to all.

Fifth, forced decryption encroaches on “the right of each individual ‘to a private enclave where he may lead a private life.’” Doe II, 487 U.S. at 212. “Laptop computers, iPads and the like are simultaneously offices and personal diaries. They contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails.” United States v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013). Our phones and electronic devices contain “a digital record of nearly every aspect of [users’] lives — from the mundane to the intimate.” Riley v. California, 134 S. Ct. 2473, 2490 (2014). Thus, electronic devices, “[w]ith all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’” Riley v. California, 134 S. Ct. 2473, 2494–95 (2015) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)).

With the above in mind I wish everyone here the best!

  • Tinker v Des Moines has been diminished by Hazelwood v. Kuhlmeier. If a school determines that a student is being disruptive, they have more latitude. Given that they took the extraordinary step of confiscating the phone, they probably had a reason to view some actions as disruptive. – grovkin Sep 12 '20 at 11:55
  • 1
    I agree. The school can seize it, but cannot compel access to it. – darrenchaker Sep 13 '20 at 0:49

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.