Protecting your recording

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Can the police take my phone or other recording device?

While the police may be able to take your phones for the reasons outlined below, this does not give them the right to access the phone's contents. You are not required to provide your passcode. This access requires a warrant. Please take a look at the section on keeping phone contents secure

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The police cannot take your phone just because they dislike your recording. There must be a lawful reason for them to take your phone.

There are only limited circumstances where they can take your phone, but the laws are slightly different in different places . Generally, the police can only take your property in the following circumstances: 
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• The police have a warrant

Police usually need a warrant to search your possessions or property. If the warrant includes your phone, the police can seize it and examine its contents.

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• The police arrest you

If you are arrested, the police can usually search you once you are in lawful custody and then seize anything in your possession. This alone does not give the police power to search the contents of your phone; they only have the power to hold onto your possessions while you are in custody.

If you believe you are about to be arrested and have the chance, this is a good time to use the 'Notify emergency contacts' tool in the CopWatch app.

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• The police believe you have committed an offence

There are limited circumstances where police may search without a warrant and seize your property, including your phone. These rules differ across Australia, but generally, they apply only if you have committed an offence and the search relates to that offence.

So, for example, if the police believe you have committed a graffiti offence, they can search you for spray paint. If they find spray paint, they can take it because it is related to the offence. They should not take your phone unless it is associated with the offence.

This power may also apply if the police believe you have stolen something. If the police believe that your mobile phone is stolen, they may be able to seize it.

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• The police believe you have made an illegal recording

There are not many circumstances where it is unlawful to make a recording, so this should not happen. Everywhere in Australia, the law says you can record in public, even if the police tell you to stop.

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You need to know the rules around recording private conversations or activities (see the section 'Can I record the police on private property?').

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• The police want to preserve evidence

If the police believe that your property is, or contains, evidence of an offence. In that case, they may be able to seize it to make sure evidence is not destroyed or lost. This may include evidence stored on your recording device.
The rules are slightly different depending on where you are. In some places, this power only applies if the alleged offence is a serious (indictable) offence

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• Are there circumstances where police can take action against a public member who is taking images or filming?

Yes, police have powers under Commonwealth defence legislation to arrest a person who has photographed specific defence sites. 

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Police also have the right to act if a crime is committed by the person filming. This could include filming a person's private parts or a person engaged in a private act. The camera equipment and footage may be used as evidence in these situations.

 

These rules are designed to ensure that the police can seize items to prove an offence. They are not intended for police to take your phone because there is evidence against the police. However, if you have recorded someone else committing an offence, the police may have the power to keep this evidence.

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You may even commit an offence yourself if you delete evidence. See the section 'Can my recording be used as evidence?' for more information about this.

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Can the police search my phone?

This is a shadowy area. Generally, police can do some things when searching a person. They include "examine anything in possession of the person". This means a police officer can look through your wallet, bag, or phone if a "reasonable suspicion" is established. This provides a reason to lock your phone with a passcode.

You are not required to provide your passcode. This access requires a warrant. Please take a look at the section on keeping phone contents secure.

Always make sure your phone is secured with a password, as unless an officer has an order from the court, you're not required to provide them with access to it.

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Can the police make me unlock my phone?

Police need a warrant to force you to disclose your password, PIN another security method to unlock your phone
 

If the police have a warrant to search your phone, you would usually need to provide them with access to the electronically stored information (that is, the contents of your phone). This means you may have to unlock the phone for them.

 

The police cannot physically force you to unlock your phone, for example, by physically pressing your finger against the fingerprint recognition button.

If you refuse to unlock the phone and the police require access, the police should seize the phone and follow up with the court that issued the warrant. You may want to do this if you believe the police do not have a legal right to access your phone, and you want to provide evidence to the court to argue that right.
 

Always speak to a lawyer before you unlock your phone for the police.

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Can the police delete my recording?

No. Definitely not. Not under any circumstances.

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Protecting my phone's privacy and recordings

The CopWatch app stores captured videos automatically in your phone's gallery and within the app. 
 

Uploading a video to the cloud prevents police from deleting it from your phone.

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Keeping phone contents secure

If you have locked the phone with a passcode, the police cannot look through it unless they have a warrant. Police need a warrant to force you to disclose your password, PIN or encryption keys to enable access to a phone.

It is unclear whether a police officer holding your phone up to your face or taking your finger to unlock it biometrically would satisfy this requirement. 

 

People keep a lot of information on their phones. It is important to remember that your phone may be confiscated, lost or stolen. When the phone is out of your hands, it may be unlocked, and its contents downloaded for analysis. There are software and devices to break into phones and retrieve the contents. To protect the contents of your phone, we suggest the following:

• Avoid using biometrics. Instead, lock your phone with a secure passcode (that means more than a few digits). If you must use biometrics, use the fingerprint scanner rather than facial recognition and learn how to enable your device's lockdown mode. This prevents biometric authentication and requires your passcode to be used to unlock the device.

  • On Android, hold the power button and select lockdown.

  • On an iOS device, hold the power button and volume buttons for a few seconds until you see the power off, medical ID, and Emergency SOS screen. Tap cancel, and the phone will require your passcode to unlock instead of biometric authentication.

• Enable disk encryption. Most Android and Apple devices will do this automatically when you enable a passcode or biometrics but double-check.

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How can I make sure my recording is stored safe in the cloud?

A video can also be sent to a cloud service for added security, providing backup in case your phone is lost or destroyed. There are many cloud services. Some may be available as part of your phone plan. Others generally cost but may have a free limited option.

• Apple iCloud Drive (5 GB free)

• Microsoft Drive (5 GB free)

• IDrive (10 GB free)

• Google Drive (15 GB free)

• DropBox (2 GB free)

More space requires a paid subscription.

If you choose a cloud storage option, you can see the provider's website to configure your phone set-up correctly. Things to consider include backup on Wi-Fi or the network. If this occurs once a day or instantly.
 

Recovering deleted data on your phone

If someone deletes footage you captured in CopWatch or accidentally deletes a needed CopWatch recording from the phone's gallery. It may be possible to recover.

The CopWatch app stores captured videos automatically in your phone's gallery and within the CopWatch app. It is possible from the CopWatch app to restore videos to the phone's gallery 

 

The other method relies upon the phone itself and is not connected to the CopWatch app. 

 

Firstly, be sure not to use the device to record again until you've extracted the deleted content successfully.

 

Essentially, deleting a file from your device merely removes it from the file directory, without which the file won't appear. When you run a software recovery program, it will scrape all video content from the destination you indicate (the device's internal memory or the SD card). The recovery program is not a laser – you can't search for a specific file. Instead, it operates like a vacuum, sucking all content from the destination.

 

There are many software recovery programs. A search on Google for recovering "phone data software" returns many results. Note that some of the free versions recover only up to 1GB. If you try one and it doesn't produce the deleted content you hope to recover, don't be deterred, try another. Have patience with this process, as it could be time-consuming depending on your drive size. We would recommend that you consult with someone with experience to help you.
 

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