Federal prosecutors in California have twice pushed the boundaries regarding law enforcement’s ability to access cellphones. Two warrants recently received judicial approval, allowing authorities to require fingerprints from suspects with iPhones.
After the recent incidents in California, Fourth and Fifth Amendment questions began surfacing. Both protect citizens from unreasonable search and seizure and compelled self-incrimination, respectively. The legal status of forcing a fingerprint unlock has only become more cloudy.
The first incident took place at a home in Lancaster, California. Residents were required to pull out their devices and unlock them with their fingerprint. Forbes, on October 16, published the redacted court filing where the government argues that this activity is legal. The filing specifically argues that requiring a fingerprint does not violate the Fourth or Fifth Amendment.
Ars Technica reached out to a spokesman for the Los Angeles prosecutors office regarding the search. The spokesman, Thom Mrozek, told Ars that a similar search was conducted on May 10 at a house in West Covina, California. The spokesman would not answer any further questions. Ars was able to speak to residents of the home in Lancaster and confirm that this activity did in fact take place. No contact was made with the West Covina house, however.
These cases raise privacy concerns similar to those discussed during the high-profile FBI vs. Apple case. In early 2016, a California federal judge ordered Apple to help the FBI bypass the encryption on a suspect’s iPhone. Privacy advocates strongly opposed the court’s decision as such an action could set a dangerous precedent for future cases. The FBI ultimately dropped the case after an unknown third party stepped in and accomplished the task.
As with the Apple scenario, allowing law enforcement to require fingerprints from individuals is dangerously unprecedented.
“Not only does it make it difficult to have a public debate about these issues, the courts could make a whole bunch of case law based solely from arguments from the government, and that’s not how it’s supposed to work,” said Marcia Hofmann, a San Francisco-based attorney.
“When the case law gets developed like this, when the cases are sealed, and the government is the only one doing the briefing, that can’t happen. That’s what I find most frustrating about this, frankly,” Hofmann continued.
The court filing is unspecific in scope and fails to clarify how many devices were accessed. It states the goal and aim on page three within the introduction:
The government submits this supplemental authority in support of its application for a search warrant which seeks authorization to depress the fingerprints and thumbprints of every person who is located at the SUBJECT PREMISES during the execution of the search and who is reasonably believed by law enforcement to be a user of a fingerprint sensor-enabled device that is located at the SUBJECT PREMISES and falls within the scope of the warrant. The government seeks this authority because those fingerprints, when authorized by the user of the device, can unlock the device.
After defining the “scope” of the search, the document explained the necessity to force fingerprints. Apple devices were pointed out in great detail. Other devices were mentioned as well, but Touch ID was described extensively. One highlight of the document was the limitations associated with Touch ID; for instance, Touch ID will not unlock a phone after 48 hours. Similarly, after a reboot or five failed passcode unlock attempts, Touch ID will no longer be useful. Ars pointed out that the aforementioned searches took place within 48 hours of the warrant’s approval.
The document then proceeded to make the relevant arguments in light of the Fourth and Fifth Amendments. Page eight:
The fact that a successful unlocking of the device could also demonstrate a connection between the person and the device thus does not make the requested fingerprints testimonial, any more than does a warrant’s authorization to seize a person’s keys. If anything, the connection raises a Fourth Amendment concern, which is discussed and dispatched below. Finally, as law enforcement will only be seeking to depress the fingerprints of those persons present at the search location for whom law enforcement has cause to believe may be a user of a device, neither the Fifth Amendment nor Fourth Amendment is violated.
In 2014, a Virginia court ruled that a fingerprint could be forced but a passcode could not be required or compelled. Compelling a suspect to reveal a passcode would be a Fifth Amendment violation but a fingerprint would be no different than DNA analysis.
Judge Steven C. Frucci ruled that giving police a fingerprint is akin to providing a DNA or handwriting sample, which is permitted by the law. He further ruled that requiring a suspect to enter a passcode requires a suspect to divulge knowledge. The Fifth Amendment protects individuals from self incrimination and entering a passcode would be self-incriminating.
“Why does the law distinguish between passcodes and fingerprints?” privacy advocates ask.
Orin Kerr, a law professor, wrote an in-depth piece that summarized the rights and wrongs of the California search warrants. He wrote “… if the officers find a phone and tell a suspected owner to unlock the phone with his finger, responding to the order may imply testimony.” He further clarified: “By responding to the order by picking the finger that was selected to unlock the phone, the person is admitting that it is his phone.”
Jennifer Lynch, senior staff attorney at the Electronic Frontier Foundation (EFF), added:
It’s not enough for a government to just say we have a warrant to search this house and therefore this person should unlock their phone. The government needs to say specifically what information they expect to find on the phone, how that relates to criminal activity and I would argue they need to set up a way to access only the information that is relevant to the investigation.
Lynch concluded “If this kind of thing became law then there would be nothing to prevent… a search of every phone at a certain location.”