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Suspect Required To Unlock iPhone Using Touch ID in Second Federal Case (9to5mac.com)

Posted by msmash on from the that-escalated-quickly dept.

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.

8 of 233 comments (clear)

  1. TFA is not terribly clear... by LichtSpektren · · Score: 5, Insightful

    Was he compelled to actually put his finger on the phone, or was he just compelled to surrender his fingerprints? TFA is not precisely clear about that. If it's the former then that's incontrovertibly a violation of the Fifth Amendment. If it's the latter then it's just routine--he's going to leave a trace somewhere eventually.

    In either case, the moral of the story is, don't use your biometrics to lock your phone.

    1. Re: TFA is not terribly clear... by ArmoredDragon · · Score: 5, Insightful

      I don't think it makes a difference. It's well known that in IT security, the authentication factors are who you are, what you have, and what you know. The Constitution only protects the what you know factor. The who you are factor, which is almost entirely biometric, has almost zero protection. Why? Because all three branches of the government can compel you to identify who you are, and there is nothing in either the Constitution or any written laws saying otherwise.

    2. Re:TFA is not terribly clear... by Aaden42 · · Score: 4, Insightful

      There's (not a lot of...) case law that suggests a truly deadman switch that erases a device isn't considered destroying evidence. If you *do* something actively that triggers it, that's destruction and you can be charged. If by doing nothing, the device is erased, that's okay. You're also not under any obligation to mention such a thing exists.

      So for example if you set something up to wipe the device if you sent a magic text message, that would be a problem. Something that wipes if you don't touch it for a week is generally considered legal. It generally goes with the idea that you can be held to consequences for your *actions*, but there's a higher bar to hold you accountable for your *inactions*.

    3. Re:TFA is not terribly clear... by Curunir_wolf · · Score: 3, Insightful

      If you routinely destroy evidence to avoid implicating yourself in a crime, I think the intent is pretty clear.

      But that's perfectly legal. That is, you're destroying documents or files (something routinely done everywhere, all the time), which is not currently "evidence". If you think you're under investigation, or have some reason to believe you might be investigated, then you are not allowed to destroy or tamper with any evidence. But, if you're in the habit of routinely wiping your devices and files, it would be difficult or impossible to prove that in some specific incident you knowingly did it to tamper with evidence.

      So routinely wiping your data is a good strategy.

      --
      "Somebody has to do something. It's just incredibly pathetic it has to be us."
      --- Jerry Garcia
  2. Forcing you to aid in a search by sjbe · · Score: 3, Insightful

    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.

  3. confusion about self-incrimination by supernova87a · · Score: 4, Insightful

    A lot of people are confused by what self-incrimination means. Self-incrimination is forcing someone to testify (testimonial obligation), be a witness against their own interest/side in a criminal action, or generally be forced to say/admit anything that might be used against them unwittingly later as part of a prosecution. The right to non self-incrimination does not mean you are immune from having evidence produced that incriminates you!

    The key thing is that it is a right to not testify, or be a witness, which is the act of saying or stating something. If a person can be compelled to produce his/her fingerprints (something which in itself is not a testimonial act), then just because that unlocks something that incriminates the person does not mean they have been self-incriminated.

  4. Nothing to hide != nothing to fear by sjbe · · Score: 5, Insightful

    Moral of the story is Don't leave evidence on your phone. Or anywhere else for that matter.

    Idiotic statement. Sometimes what isn't actually evidence of anything can be used against you. Just because you have nothing to hide does NOT mean you have nothing to fear.

    If you need an explanation why watch this video.

  5. Re:Fingerprint might not work by flink · · Score: 3, Insightful

    Destruction of evidence is a crime (current political figures aside) which will get you sent to jail.

    May I suggest that it's a stupid idea to knowingly destroy evidence if you are the subject of a criminal investigation (or a civil lawsuit for that matter)? Now I guess if you know you are guilty, it might be worth the risk to you, but in general it's going to be a bad idea..

    But you are under no obligation to indicate which finger correctly unlocks the phone. As long as you comply with the court order "place index finger on fingerprint sensor", you don't have to tell them that doing so will erase the phone.