Judge Rules Against Forced Fingerprinting (thestack.com)

An anonymous reader quotes a report from The Stack: A federal judge in Chicago has ruled against a government request which would require forced fingerprinting of private citizens in order to open a secure, personal phone or tablet. In the ruling, the judge stated that while fingerprints in and of themselves are not protected, the government's method of obtaining the fingerprints would violate the Fourth and Fifth amendments. The government's request was given as part of a search warrant related to a child pornography ring. The court ruled that the government could seize devices, but that it could not compel people physically present at the time of seizure to provide their fingerprints "onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device." The report mentions that the ruling was based on three separate arguments. "The first was that the boilerplate language used in the request was dated, and did not, for example, address vulnerabilities associated with wireless services. Second, the court said that the context in which the fingerprints were intended to be gathered may violate the Fourth Amendment search and seizure rights of the building residents and their visitors, all of whom would have been compelled to provide their fingerprints to open their secure devices. Finally, the court noted that historically the Fifth Amendment, which protects against self-incrimination, does not allow a person to circumvent the fingerprinting process." You can read more about the ruling via Ars Technica.

Comments

don't get confused

[supernova87a]

Don't read this story as a ruling against the police / government being allowed to compel individuals suspected of criminal activity to be forced to give fingerprints. That is not what's at issue here, and the decision doesn't affect that.

This story is that the wholesale screening of individuals that the police have no otherwise suspicion of a crime, shotgun style, is being ruled against. Just like the case several years ago when police sought to have an entire small town's male population give DNA samples to match some evidence they had of a sex crime. The judge in this case tossed out the willy nilly use of police power to compel people wholly unrelated to the issue, not under suspicion at all, from having to give evidence.

When you're suspected of something specifically, you can definitely still be compelled. Just like being compelled to give a breathalyzer, or DNA when a court orders you to.

But as a more practical matter anyway, 10 tries of different people's fingerprints, and the phone will be wiped regardless... so there's a limit to how useful the technique would've been to begin with.

It's just a power grab

[rsilvergun]

and the judge saw right through it. What worries me is if we keep putting folks like Trump in charge of the Executive and he stacks the courts with folks who will ignore the rule of law. They're already forming a new court to get around the more liberal ones that run out of California...

Re:It's just a power grab

[Anonymous Coward]

You're conveniently forgetting that less than 0.2% of the Ninth Circuit's cases are ever referred to the USSC. And those that are, are by definition the ones where the losing party feels they have the best shot.

So by "80% failure rate", you actually mean "less than 0.16% failure rate".

But please, don't let mere math stand in the way of your mindless partisan hackery. After all, it's only facts.

Re:It's just a power grab

[PopeRatzo]

Bwahaha, you mean the fucking Ninth Circuit? The one that, on appeal to the Supreme Court, gets overturned a whopping 80 percent of the time? Yeah, I think any court with that kind of failure rate should be disbanded, as well.

There's some supreme nuttery going on out in California these days...

I often see this repeated by people who don't know shit.

First of all, when the Supreme Court takes a case, it overturns the Appeals Court decision in over 70% of the cases. They only grant a writ of certiorari in cases where they see an issue and it usually means they will be overturned. And despite what you read on Breitbart, the 9th Circuit is not the most overturned Appeals circuit. Kentucky/Ohio/Michigan's 6th Circuit has that distinction with an 87 percent rate of being overturned. Then comes Alabama/Florida/Georgia's 11th Circuit with a record of 85 percent. But the fact is, if your case goes to the Supreme Court, it's odds-on that it will be overturned.

6th Circuit - 87 percent;

11th Circuit - 85 percent;

9th Circuit - 79 percent;

3rd Circuit - 78 percent;

2nd Circuit and Federal Circuit - 68 percent;

8th Circuit - 67 percent;

5th Circuit - 66 percent;

7th Circuit - 48 percent;

DC Circuit - 45 percent;

1st Circuit and 4th Circuit - 43 percent;

10th Circuit - 42 percent.

Re:It's just a power grab

[PopeRatzo]

Wait, do, do you think that an 80% failure rate is good just because there are courts with HIGHER rates?

Let me slow it down for you:

Only about 1.01% of the circuit court's rulings go to Supreme Court. By definition, these are cases that SCOTUS has looked at and seen enough of a problem that they granted a writ of certiorari. If they didn't see a problem, they'd just bounce it back.

So, of the 1% that goes to SCOTUS, 80% of those are overturned and 20% are affirmed. That means the true rate of 9th Circuit cases being overturned is closer to 0.8%, not 80%.

I mentioned Breitbart, because you will only find this spurious claim of "The 9th Circuit gets overturned 80% of the time" will only be found in websites that cater to alt-Right jackoffs. And they will never mention that the courts with the highest rates of being overturned are in solid red states.

Now, do we have some clarity on this issue?

You're still looking bemused. Let me put it more simply: 80% of the 9th Circuit's rulings are not overturned, you stupid sonofabitch.

Re:It's just a power grab

[Eristone]

80% of rulings overturned in 2015? From the kindly folks at politifact:

The 9th Circuit is by far the largest circuit. In the 12 months leading up to March, 31, 2015, just under 12,000 cases were filed in the 9th Circuit — more than 4,000 more than the next-largest circuit, the 5th Circuit. Despite that gigantic docket, the Supreme Court heard just 11 cases from the 9th Circuit in 2015, reversing eight.

So, if you look at the total numbers (which you have to to match the statement you made), the Supreme Court only overturned 8 out of about 12000 rulings. (or .066%)

I hope in real life you don't deal with math like "give someone 80% of a dosage of 5% solution" or anything else that relies on numbers.

Re:Incriminating evidence

[SeattleLawGuy]

A fingerprint is a fact. And normally facts are not protected.

The Manner of protecting a fact can be protected. For example, police may not arrest someone merely in order to get their fingerprint.

Similarly, the right against self-incrimination can protect you against having to disclose facts which tend to incriminate you.

These don't mean you'll always win an argument, but there is no simple rule that facts are not protected.

Yes, poorly worded summary

[raymorris]

Yes, I read the judgement and the court wrote that there is a fifth amendment concern. Specifically, the judge pointed to another major ruling recently that by unlocking a phone via a password (or fingerprint), the person is effectively testifying that it is their phone, under their control, and they can decrypt and encrypt it.

Also, the application for the warrant was deficient on traditional fourth amendment grounds, specificity of what and who would be searched, and what the police expected to find where. They wanted to use the fingers of everyone present at the house (resident or *visitor*) to search every electronic device in the house. So a delivery man dropping off a couch at the time would have his phone searched.

The judge indicated that the police needed to be more specific. Something like "we want to search Bob Smith's Galaxy S5 for a file called 12yroldfuck.mpg because we believe he downloaded that file to that phone on February 12th, based on [evidence]." That would solve both the 4th amendment specificity issue and the 5th amendment issue - if the police already know that the Galaxy S5 is Bob's, the act of him unlocking it doesn't provide new, testimonial information.

I think what the summary was trying to hint at is that the ruling doesn't prohibit the normal process of taking fingerprints incident to arrest.