Virginia Court: LEOs Can Force You To Provide Fingerprint To Unlock Your Phone

schwit1 writes with news of a Circuit Court decision from Virginia where a judge has ruled that a criminal defendant cannot use Fifth Amendment protections to safeguard a phone that is locked using his or her fingerprint. According to Judge Steven C. Fucci, while a criminal defendant can't be compelled to hand over a passcode to police officers for the purpose of unlocking a cellular device, law enforcement officials can compel a defendant to give up a fingerprint. The Fifth Amendment states that "no person shall be compelled in any criminal case to be a witness against himself," which protects memorized information like passwords and passcodes, but it does not extend to fingerprints in the eyes of the law, as speculated by Wired last year. Frucci said that "giving police a fingerprint is akin to providing a DNA or handwriting sample or an actual key, which the law permits. A passcode, though, requires the defendant to divulge knowledge, which the law protects against, according to Frucci's written opinion."

Comments

don't use biometrics

[roc97007]

Yet another reason not to use biometrics to unlock devices.

Re:don't use biometrics

[nikhilhs]

You'd be surprised how many felonies and misdemeanors they could find on your phone. If they find anything suggesting you committed a crime, they can make your life hell for quite a while. This affects everybody.

Re:don't use biometrics

[Anonymous Coward]

"Everybody" doesn't have information on their phone suggesting they committed a crime. Contrary to the "three felonies a day" extremist conspiracy wackos, most people are above police suspicion.

Re:don't use biometrics

[Trailer Trash]

Yet another reason not to use biometrics to unlock devices.

Also yet another reason to stay the hell away from Virginia. I hope that the next time someone tries to create a free country they look at our example and build in safeguards against stupid judges, law enforcement officers, DAs, etc. And when I say "safeguards" I mean literal criminal penalties for this sort of stuff.

Re:don't use biometrics

[Moof123]

Go through your email inbox sometime. Try thinking like a paranoid below average intelligence cop with a daily quota to meet and read the last dozen or so emails you sent out of context, same with recent text messages. Innocent statements taken out of context can be bent and twisted in a cop's, or prosecutor's head.

Got pictures of your toddler daughter playing in the sprinkler or bath tub on there somewhere? You might not want them looking through there and charging you with distributing child pornography.

The broader point is that a large percentage people have much of their personal lives on the phone. Anything that make that makes that easily accessible to the police without your consent is a big deal. Information that we kept in our home file cabinet just a decade or two ago is now on our phone, so anything that makes it easier to search a phone than a house is a big step backwards in our freedom.

Re:don't use biometrics

[sconeu]

Quoth Cardinal Richilieu:

If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged.

This is not like giving a DNA sample

[mysidia]

This is like being required to sign your name.

The security feature on your phone is designed to not unlock unless you signify approval.

Giving up a key or DNA sample is not signifying your approval; it's just surrendering information which is stored outside your brain.

Re:Nonsense

[Anubis IV]

Unsurprising that a judge would try to find 'clever' ways around the spirit of the constitution

Care to cite what part of the Constitution this gets around? Because near as I can tell, the constitution does not protect you from reasonable search and seizure. It never has. Police with a warrant can open doors, break chains, crack safes, pick locks, take your keys, or do pretty much anything else they want to do to get access to your private information. That's been true for as long as any of us can likely remember. That's the whole point of investigations and detective work. Did you think they just went, "Aww shucks!" every time they came across a locked door, or did you realize that if they needed to get in, they'd either find the keys or break it in?

The reason you can refrain from providing a passcode is because the 5th Amendment protects you against self-incrimination, and the very act of providing the passcode may in itself be incriminating, since it demonstrates that you have an awareness and knowledge of the device and the means to unlock it. Which is to say, while the police may have the authority (when authorized by a proper warrant) to search your phone, they do not have the authority to compel you to give up your own rights by providing a passcode.

But their authority to search your phone doesn't suddenly die just because they can't get your passcode. If an alternative method for accessing that data exists that does not involve trampling your rights, they are welcome to use it, whether it be decrypting the phone, tricking you into providing the passcode, or, yes, using your fingerprint.

IOS Power Off

[Fnord666]

If you have an IOS device that uses fingerprint authentication, power it off before the police can seize it. When it reboots it will require the passcode before fingerprint access works.