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Suspect Required To Unlock iPhone Using Touch ID in Second Federal Case (9to5mac.com)
An anonymous reader shares a report on 9to5Mac: A second federal judge has ruled that a suspect can be compelled to unlock their iPhone using their fingerprint in order to give investigators access to data which can be used as evidence against them. The first time this ever happened in a federal case was back in May, following a District Court ruling in 2014. The legal position of forcing suspects to use their fingerprints to unlock devices won't be known with certainty until a case reaches the U.S. Supreme Court, but lower court rulings so far appear to establish a precedent which is at odds with that concerning passcodes. Most constitutional experts appear to believe that the Fifth Amendment prevents a suspect from being compelled to reveal a password or passcode, as this would amount to forced self-incrimination -- though even this isn't certain. Fingerprints, in contrast, have traditionally been viewed as 'real or physical evidence,' meaning that police are entitled to take them without permission.Ars Technica has more details.
Moral of the story is Don't leave evidence on your phone. Or anywhere else for that matter.
If you're not doing illegal stuff on your phone, you don't have to worry.
That works, until the government decides that your particular activity is a threat to government and makes it illegal. So no, you're incorrect, you should worry about what your government can do to you.
My particular solution would be to have a deadman's switch that erases the phone when using any finger but the one correct one. Or better yet, disable the Finger Prints from your phone, and use a proper PIN, which they cannot force you to divulge.
Agent K: A *person* is smart. People are dumb, stupid, panicky animals, and you know it.
No, the moral of the story is don't use your fingerprint as a password.
"If there was a gay Afro-Puertorican Linux distribution, I'd give it a try" ~lucm
They aren't stupid, they bit copy (dd) the device when it's seized. Now a local police agency might not do this but anything involving the fed's is going to be copied the second they get their hands on the data, even if it's encrypted. This is directly to prevent challenges on data integrity and to prevent dead man switches.
your fingerprints aren't a testimony against yourself. Read the damn thing. "nor shall be compelled in any criminal case to be a witness against himself."
Your fingerprints absolutely can be evidence against you. That's not even a question. The police have a long established right to take your fingerprints when you are arrested and to compare them with gathered evidence.
That said I have a hard time reconciling this with the right against self incrimination in the Constitution. In principle I feel a biometric pass code should be legally no different than a memorized one. Either way you are being forced to potentially incriminate yourself. But I suspect that the legal system will rule that they are different and so if you want your phone to be secure against search and seizure you must avoid biometric pass codes unfortunately. The problem here is that they are not comparing your fingerprints against evidence they have found. They are in effect forcing you to open a lock on their behalf. I don't have a problem with them having the right to search but I don't see why the target of the investigation should be forced to aid in that search. If they can break down a door to do a search (with a warrant) then have that right but I don't see why I should have to hand over the key to the house so to speak.
Courts have long held that you are required (once a proper warrant has been issued) to provide keys to any lock (such as a safe) that is the subject of search or evidence. However, you cannot be compelled to provide the combination of a safe that is secured that way. So they're using the same principle. Your fingerprint is something that you HAVE, so you can be required to provide it. A combination or password is something that you KNOW, and you're allowed to keep your mental secrets secret.
"Somebody has to do something. It's just incredibly pathetic it has to be us."
--- Jerry Garcia
Or, more specifically, obstruction of justice.
If you refuse to give a legible fingerprint when your fingerprints are being taken at the jail, for example by trying to move your fingers back and forth so the ink smudges, the bailiff or other police official will just hold you down until they can get a valid read. You have no right to prevent that from being done.
If you do the same thing, but in a way that surreptitiously destroys the evidence on the phone in the process (knowledge of the switch, and your awareness that you're using the wrong finger to do it), you're destroying evidence. That's not just contempt, that's obstruction of justice .. and a nice federal jail sentence.
Hire a Linux system administrator, systems engineer,
Why is my phone not protected because I used a fingerprint while your phone is because you used a passcode?
The phone is not legally protected in either case. If they can find a way in, they can use the data. What is protected in the latter case is the fact that you know the passcode. If there is anything incriminating on the device then knowing the passcode which unlocks it would be tantamount to an admission of guilt. (Note that the passcode is generally not protected if they can separately prove that you have the ability to unlock the device, since at that point you would not be revealing anything incriminating.)
The principle behind the prohibition on self-incrimination is that no one who has not already proven guilty should be placed in a catch-22 where their only options are to confess their guilt or be punished for failing to do so. Allowing records to be taken of your physical characteristics does not even amount to providing testimony, much less testifying against yourself.
"The state is that great fiction by which everyone tries to live at the expense of everyone else." - Bastiat