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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."
... if you are carrying incriminating evidence on your phone, or you have other reasons, perhaps political for needing it to remain secret.
Not defending this in any way. Just pointing out that for the average person, it probably doesn't make finger-print locks problematic.
But if you need to keep stuff secret from the authorities, use a good password on a phone OS with good security.
So what's next you can be forced to be scanned and have your thoughts read, it's not testifying in the verbal or written sense. Letter by letter realtime
Tooo slippery...
iOS implements this simply: after 48 hours of not logging in, or a phone reboot, it requires a passcode.
Any decent lawyer should be able to postpone any forcible press.
That being said, we are slowly losing our liberties.
Yet another reason not to use biometrics to unlock devices.
Time for a feature like "Right index finger unlocks, left index finger wipes most things, then unlocks."
Honestly, I'm a little surprised that they can't require you to divulge the passcode. From what I've read, the 5th is construed to prevent the government from forcing you to create new evidence that could be used to convict you of something; it does not protect any existing evidence (in a safe, in a file cabinet, on your computer, etc), and compelling a defendant to make potential evidence available for examination has been legit for a long time. It's just that until now, if the defendant refused, there was usually a way to get at it anyway...
Not saying I'm unhappy about it, just surprised.
Seriously. A friend of mine had his ex-wife (they're on good terms) send him a picture of their daughter, who was something like 4 at the time. The girl was riding a toy horse, and but for a cowboy hat was buck naked. The ex thought it was cute; my friend was upset that she would encourage things like that. I told him to get that picture the fuck off his phone before he gets pulled over (he had a lead foot and a weed habit), arrested, and the cops find a photo like that on his phone. He saw the wisdom in that right away.
You can't be too careful. There are cops and attorneys at the D.A.'s office who like nothing better than to put the screws to people, at the smallest provocation; and in this "zero tolerance" world, you're guilty until you prove yourself innocent.
quiquid id est, timeo puellas et oscula dantes.
Nope. The distinction here is that one act is communicative, while the other is not.
Let's go back to the 1966 Supreme Court case that established case law on these sorts of issues. That case dealt with a person involved in a car accident who was suspected of drunk driving. A police officer could smell the alcohol on his breath, so when the man was in the hospital after the accident, he directed a doctor to take a blood sample over the suspect's objections. In other words, his own blood was being used to incriminate him.
Some relevant passages:
We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature
Basically, they're saying that the 5th Amendment only protects evidence of a "testimonial or communicative nature". More on that below.
"[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof."
They're quoting an earlier case here, but basically they're saying that a person's body can be used to incriminate them, without it violating the Fifth Amendment. Without that being true, you'd get all sorts of nonsensical rules, like the one they cited, where the mere act of allowing the jury to see the defendant would mean violating his right against self-incrimination, since then they could compare him against a photo taken of the suspect at the crime scene. Hell, even witnesses wouldn't be able to see defendants, since they'd be able to recognize them, potentially. Clearly the Fifth was not intended to protect against such ridiculousness.
In the present case, however, no such problem of application is presented. Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioner's testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone. 9 Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.
I.e. While compulsion was indeed involved, A) that it was compelled didn't change anything, B) there was no testimony or communication involved at all, C) the compulsion didn't relate to testimony or communication.
All of this ties back in with fingerprint locks, since your fingerprint is just another form of physical evidence, like any other that you may be asked to provide, and all three of those apply here as well. Whether it's compelled or not doesn't change anything, and it, in and of itself, does not communicate anything. By providing your fingerprint, you aren't acknowledging your guilt. You aren't testifying that you did it. You aren't indicating an awareness of anything at all. You're merely providing your fingerprint...in this case on a device they have in evidence, rather than on a piece of paper. That your fingerprint's ability to unlock the device can be used to incriminate you does not mean that your rights are being violated. It merely means that "the glove fit", so to speak.
The same is not true of something like a passcode, which is, by its very nature, communicative.
IANAL. I'm just a guy who responded with a knee-jerk reaction that of course this was wrong of them to do, gave it some more thought, found a contrary view that actually made a great deal of sense, and decided to go look up some of the case history on the subject to find out what the real answer was since I found the topic fascinating.