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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."
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.
Just chew them off which ever finger print unlocks the phone. They don't get your info, and you get an insanity plea.
XDInd
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...
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.
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."
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.