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May 31 2019   10:28PM GMT

Another Judge Rules Against Compelled Biometric Cellphone Unlocks

Sharon Fisher Sharon Fisher Profile: Sharon Fisher


A second judge has ruled that having to use biometrics, such as a fingerprint or your face, to unlock your cellphone when you’ve been accused of a crime is a violation of the person’s Fifth Amendment rights against self-incrimination.

That’s after a first one in January.

As with a number of the cases around law enforcement trying to get information out of a person’s cellphone or laptop, the crime in question was child pornography. Exactly which law enforcement agency was doing this, and in what city, and the suspect’s name, was all sealed.

The judge in question is Idaho Chief U.S. Magistrate Judge Ronald E. Bush. “Using the individual’s fingerprints for this purpose would constitute a search and seizure under the Fourth Amendment,” he writes in his ruling. “For a search and seizure to be lawful under the Fourth Amendment it must be ‘reasonable.’ A search or seizure is unlawful, and therefore unreasonable, when it violates a person’s constitutional rights. Here, compelling the use of the individual’s fingerprints violates the Fifth Amendment right against self-incrimination because the compelled unlocking of the phone with fingerprints would communicate ownership or control over the phone. Because the compelled use of the individual’s fingerprints violates the Fifth Amendment, the search and seizure would not be reasonable under the Fourth Amendment. Thus, the Fourth Amendment and the Fifth Amendment prohibit the result sought by the Government.”

In contrast, “Furnishing a blood sample, for instance, or providing a handwriting or voice exemplar, standing in a lineup, or submitting to fingerprinting for identification purposes are not testimonial communications because such actions do not require the suspect ‘to disclose any knowledge he might have’ or to ‘speak his guilt,’” Bush continues.

Bush also notes that there were at least four other cellphones in the house with the suspect, so it isn’t at all clear that this particular cellphone was known to belong to the suspect. “The applicant avers that, when questioned at the residence at the time the earlier search warrant was executed, the individual told law enforcement his/her phone was in the bathroom. A phone was found in a bathroom, and the application implies that the individual was not in the bathroom when that statement was made,” Bush writes. “But three other phones were also located during the search. There is no specific information about how many bathrooms were in the residence. There is no information about whether the individual lives alone or whether anyone else lives or was in the residence at the time of the search. To be clear, none of these facts are determinative of the Court’s conclusion in this case. But they do illustrate that any connection between the individual and the phone at issue here is more tenuous than it might be under other circumstances.”

As in the January case, the judge is a magistrate, meaning his ruling could be overturned on appeal, as was a 2017 case in Illinois. In fact, law enforcement agencies are already trying to overturn the January case, using the Illinois case as a precedent, because it “held that no Fifth Amendment testimonial act occurs when agents press a subject’s fingers against a Touch ID sensor on an iPhone, because ‘the government agents will pick the fingers to be pressed on the Touch ID sensor, so there is no need to engage the thought process of any of the residents at all in effectuating the seizure,’ and applying the fingerprint to the sensor ‘is simply the seizure of a physical characteristic, and the fingerprint by itself does not communicate anything,’” the U.S. Attorney in California writes.

The reason this is an issue is that for some time now, it’s been true that, while people may or may not be required to give their cell phone passwords to law enforcement, they were required to give fingerprints and other biometric agents. That’s because a fingerprint is something you have, similar to the way that you can be compelled to give up a blood sample to test for alcohol. And just last August, law enforcement forced a suspect to unlock their iPhone with their face. These were all cited in the request to overturn the January ruling.

It’s also important to point out that, in both the January and May cases, it wasn’t altogether clear that the cellphone in question belonged to the suspect, and the case could indeed be made that using biometrics to unlock it would prove ownership. It’s not clear, for example, that the judges would have made the same ruling if there was a single person and a single cellphone in the house, making it much easier to demonstrate the cellphone in question belonged to the suspect.

In any event, with this ruling, and the one in January (as well as the similar one in Illinois in 2017 that was overturned), it’s getting more likely that this will eventually wind up in front of the Supreme Court.



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