Federal Judge: Feds Can't Force To Unlock Phone With Finger, Face...
Feds Can't Force You To Unlock Your iPhone With Finger Or
Face, Judge Rules
Thomas Brewster Jan 14, 2019, 09:05am
A California judge has ruled that American cops can’t
force people to unlock a mobile phone with their face or finger. The ruling
goes further to protect people’s private lives from government searches than
any before and is being hailed as a potentially landmark decision.
Previously, U.S. judges had ruled that police were
allowed to force unlock devices like Apple’s iPhone with biometrics, such as
fingerprints, faces or irises. That was despite the fact feds weren’t permitted
to force a suspect to divulge a passcode. But according to a ruling uncovered
by Forbes, all logins are equal.
The order came from the U.S. District Court for the
Northern District of California in the denial of a search warrant for an
unspecified property in Oakland. The warrant was filed as part of an
investigation into a Facebook extortion crime, in which a victim was asked to
pay up or have an “embarassing” video of them publicly released. The cops had
some suspects in mind and wanted to raid their property. In doing so, the feds
also wanted to open up any phone on the premises via facial recognition, a
fingerprint or an iris.
While the judge agreed that investigators had shown
probable cause to search the property, they didn’t have the right to open all
devices inside by forcing unlocks with biometric features.
On the one hand, magistrate judge Kandis Westmore ruled
the request was “overbroad” as it was “neither limited to a particular person
nor a particular device.”
But in a more significant part of the ruling, Judge
Westmore declared that the government did not have the right, even with a
warrant, to force suspects to incriminate themselves by unlocking their devices
with their biological features.
Previously, courts had decided biometric features, unlike
passcodes, were not “testimonial.” That was because a suspect would have to
willingly and verbally give up a passcode, which is not the case with
biometrics. A password was therefore deemed testimony, but body parts were not,
and so not granted Fifth Amendment protections against self-incrimination.
That created a paradox: How could a passcode be treated
differently to a finger or face, when any of the three could be used to unlock
a device and expose a user’s private life?
And that’s just what Westmore focused on in her ruling.
Declaring that “technology is outpacing the law,” the judge wrote that
fingerprints and face scans were not the same as “physical evidence” when
considered in a context where those body features would be used to unlock a
phone.
“If a person cannot be compelled to provide a passcode
because it is a testimonial communication, a person cannot be compelled to
provide one’s finger, thumb, iris, face, or other biometric feature to unlock
that same device,” the judge wrote.
“The undersigned finds that a biometric feature is
analogous to the 20 nonverbal, physiological responses elicited during a
polygraph test, which are used to determine guilt or innocence, and are
considered testimonial.”
There were other ways the government could get access to
relevant data in the Facebook extortion case “that do not trample on the Fifth
Amendment,” Westmore added. They could, for instance, ask Facebook to provide
Messenger communications, she suggested. Facebook has been willing to hand over
such messages in a significant number of previous cases Forbes has reviewed.
Law finally catching up with tech?
Over recent years, the government has drawn criticism for
its smartphone searches. In 2016, Forbes uncovered a search warrant not
dissimilar to the one in California. Again in the Golden State, the feds wanted
to go onto a premises and force unlock devices with fingerprints, regardless of
what phones or who was inside.
Andrew Crocker, senior staff attorney at the digital
rights nonprofit Electronic Frontier Foundation, said the latest California
ruling went a step further than he’d seen other courts go. In particular,
Westmore observed alphanumeric passcodes and biometrics served the same purpose
in unlocking phones.
“While that’s a fairly novel conclusion, it’s important
that courts are beginning to look at these issues on their own terms,” Crocker
told Forbes. “In its recent decisions, the Supreme Court has made clear that
digital searches raise serious privacy concerns that did not exist in the age
of physical searches—a full forensic search of a cellphone reveals far more
than a patdown of a suspect’s pockets during an arrest for example.”
The magistrate judge decision could, of course, be
overturned by a district court judge, as happened in Illinois in 2017 with a
similar ruling. The best advice for anyone concerned about government overreach
into their smartphones: Stick to a strong alphanumeric passcode that you won’t
be compelled to disclose.
Comments
Post a Comment