Posted on 05/09/2016 12:39:28 PM PDT by Swordmaker
Judges in the U.S. have ordered people to unlock their fingerprint-locked phones. Coercion by others remains an issue.
Should you be able to plead the Fifth when a judge forces you to use your fingerprints to unlock an iPhone?
That’s the latest ongoing debate in a Los Angeles courtroom after a judge compelled a woman in custody to use Touch ID to unlock an iPhone. Legal experts are arguing that this goes against the Fifth Amendment’s protection against self-incrimination because the authorities would then have access to potentially-incriminating personal data stored on the device.
The debate started after authorities obtained a search warrant for Paytsar Bkhchadzhyan, the girlfriend of a suspected Armenian gang member, to use her fingerprints to unlock an iPhone seized from a home in Glendale, California. The iPhone in question was enabled with Touch ID sensor technology.
In February, Bkhchadzhyan was sentenced to a felony count of identify theft. According to court documents, it only took 45 minutes after Bkhchadzhyan was taken into custody for U.S. Magistrate Judge Alicia Rosenberg to order her to press her fingerprints on the iPhone. Bkhchadzhyan’s fingerprints were collected by an FBI agent that same day.It’s the same as if she went home and pulled out paper documents—she’s produced it.
Even though the U.S. Supreme Court has ruled that authorities can obtain a search warrant for mobile phones and can force people in custody to hand over physical evidence including fingerprints without a judge order, legal experts say this case is different. Their argument is that forcing a person to use their fingerprints to unlock an iPhone could be a form of self-incrimination, in violation of the Fifth Amendment.
According to Susan Brenner, a law professor at the University of Dayton, this is on par with unlawfully forcing someone to testify incriminating testimony. By unlocking the iPhone with her fingerprints, Bkhchadzhyan would be authenticating the data on the phone and become associated with it.
“By showing you opened the phone, you showed that you have control over it,” Brenner told the LA Times. “It’s the same as if she went home and pulled out paper documents—she’s produced it.”’Put your finger here’ is not testimonial or self-incriminating.
But not every legal expert believes that fingerprints fall under the Fifth Amendment’s protection against self-incrimination. In fact, Touch ID may be a legal loophole to forcing someone to reveal their passcode.
“Unlike disclosing passcodes, you are not compelled to speak or say what’s ‘in your mind’ to law enforcement,” Albert Gidari, the director of privacy at Stanford Law School’s Center for Internet and Society, told the LA Times. “‘Put your finger here’ is not testimonial or self-incriminating.”
Why this matters: The issue boils down to the earlier ruling that fingerprints are “physical evidence,” like a key. The legal system does not require a search warrant for physical evidence. However, producing an iPhone passcode is considered knowledge stored in one’s mind, so forcing someone to disclose the passcode is protected under the Fifth Amendment.
It gets murky, however, with fingerprint sensors that unlock mobile phones. For Touch ID to be able to unlock an iPhone, a person has to physically press down on the device. A fingerprint scan won’t do. So it’s more involved than just handing over a key. It’s forcing someone to perform an action with a key only they can use.
She said that at a speech in Buffalo.
That has already been ruled on. Judges can order you to reveal something in your mind but you are not required to testify against yourself.
Political Junkie Too wrote: “In that case, they already have the weapon with the fingerprint on it, so they have reasonable cause to ask for the person’s fingerprint.”
Why do they have reasonable cause to ask for a specific person’s fingerprint? Just because there is a print on a handgun? Why John Doe’s print? Why not Edward John’s print? Can the police just stop random people and make them give a print?
Sheesh, these people!!
If they say they can force you to give a fingerprint to unlock the phone, there goes the fingerprint as your password - or any other biometric form of ID.
You analogized a gun with fingerprints. In the case of the phone, that it was the suspect's phone is not in doubt. So the analogy assumes that the gun with the fingerprint belongs to the person being asked to provide a fingerprint, same as with the phone.
Now, do the police have probable cause to ask the owner of a gun to provide a fingerprint to match one found on a gun? I think so, at the very least to rule out the owner as the last to touch the gun.
Now let's change the hypothetical slightly. The owner of a gun already has fingerprints on file from the purchase of the gun, so the police would already have checked that without the gun owner's involvement. So let's say the the gun was found in the possession of someone else. Do the police have probable cause to ask the possessor of a gun to provide a fingerprint to match one found on a gun? Again, I think so.
This would not be a random person stopped on the street, - would be someone found in the vicinity of the gun/phone, with a probable connection to it.
Finally, checking a fingerprint on a gun does nothing to alter the state of the gun, but swiping the fingerprint on the phone changes the state of the phone.
-PJ
Just remember the iPhone 5C is the only one they CAN unlock without your cooperation.
Can the court compel you to provide a combination to a safe found in your home? There is some dicta that says that a court can compel you to provide a key to a lockbox and that is somehow different from compelling you to provide a combination. IOW, this conversation is not about what the law says but about what the law should be.
How does touch ID work if your calling 911 for an ambulance after the accident, and your hands are covered with blood?
If there is a search warrant, I would say they can ask you to open the safe or take the safe until they can open it. I would be surprised to find that by putting something in a safe, you can prevent the police from carrying out a lawful court order.
-PJ
You don't. You say "Hey Siri, call 911!" . . . I posted a thread where a smashed iPhone with the screen detached still worked for that last week.
Eh. Cut off the finger. Use while still fresh. Problem solved/s
Wait - you used Siri to call 911 just because your iPhone broke?!
I quit using touch ID and use a really long passcode (to prevent the sort of brute force attack made possible by 3rd party on San Bernardino phone)
Some difference in opinion on that. One court has ruled that they can make you provide a physical key to a lockbox but there is some dispute over whether a court can compel you to provide a memorized combination.
http://blogs.denverpost.com/crime/2012/01/05/why-criminals-should-always-use-combination-safes/3343/
Personally, I don’t think the distinction between a combination and a key will stand. I also believe that the courts will rule that you can be compelled to unlock your electronic records through a court order. You won’t be compelled to identify what the records are or why they might or might not be relevant but you would have to provide access.
Quite so. I fully intend to upgrade my phone prior to any planned nefarious activities.
Seriously, there is no, and can be no, easy way to data security. But with minimal guidance, even an ordinary person can make their data so secure that it is not worth the effort to break through it.
You always have the option of removing your finger and sending it to the Feds in case they ever want it. They have a great big freezer.
I think virtually every state requires a thumb print be included on your driving license.
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