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posted by CoolHand on Tuesday January 15 2019, @04:47PM   Printer-friendly
from the do-NOT-give-them-the-finger dept.

Submitted via IRC for Bytram

Feds Can't Force You To Unlock Your iPhone With Finger Or Face, Judge Rules

A California judge has ruled that American cops can't force people to unlock a mobile phone with their face or finger. The ruling goes further to protect people's private lives from government searches than any before and is being hailed as a potentially landmark decision.

[...] But in a more significant part of the ruling, Judge Westmore declared that the government did not have the right, even with a warrant, to force suspects to incriminate themselves by unlocking their devices with their biological features. Previously, courts had decided biometric features, unlike passcodes, were not "testimonial." That was because a suspect would have to willingly and verbally give up a passcode, which is not the case with biometrics. A password was therefore deemed testimony, but body parts were not, and so not granted Fifth Amendment protections against self-incrimination.

That created a paradox: How could a passcode be treated differently to a finger or face, when any of the three could be used to unlock a device and expose a user's private life?

And that's just what Westmore focused on in her ruling. Declaring that "technology is outpacing the law," the judge wrote that fingerprints and face scans were not the same as "physical evidence" when considered in a context where those body features would be used to unlock a phone.

[...] There were other ways the government could get access to relevant data in the Facebook extortion case "that do not trample on the Fifth Amendment," Westmore added. They could, for instance, ask Facebook to provide Messenger communications, she suggested. Facebook has been willing to hand over such messages in a significant number of previous cases Forbes has reviewed.

[...] Andrew Crocker, senior staff attorney at the digital rights nonprofit Electronic Frontier Foundation, said the latest California ruling went a step further than he'd seen other courts go. In particular, Westmore observed alphanumeric passcodes and biometrics served the same purpose in unlocking phones.

[...] The magistrate judge decision could, of course, be overturned by a district court judge, as happened in Illinois in 2017 with a similar ruling. The best advice for anyone concerned about government overreach into their smartphones: Stick to a strong alphanumeric passcode that you won't be compelled to disclose.


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  • (Score: 3, Interesting) by mobydisk on Tuesday January 15 2019, @06:28PM (7 children)

    by mobydisk (5472) on Tuesday January 15 2019, @06:28PM (#786987)

    But in a more significant part of the ruling, Judge Westmore declared that the government did not have the right, even with a warrant, to force suspects to incriminate themselves by unlocking their devices with their biological features

    I'm unclear on how far the rules of "self incrimination" go. If an evil mobster has a meat locker with the bodies of his last 14 victims, can we not compel him, with a warrant, to open the meat locker? If not, would it be okay to get a warrant to destroy the door to open the meat locker? How is one self-incrimination but the other one is not? By digital analogy, suppose it not okay to get a warrant to force them to unlock the phone. Can we get a warrant to hack it? How is that any better?

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  • (Score: 3, Informative) by EvilSS on Tuesday January 15 2019, @06:41PM

    by EvilSS (1456) Subscriber Badge on Tuesday January 15 2019, @06:41PM (#786991)
    So the thinking (before this case) was that the difference is that unlocking your phone (with a passcode, again, ignoring this case) was tantamount to testifying as it forced you to provide knowledge that could be used against you. Where as hacking the phone or breaking the door down doesn't require the accused to provide the state with any knowledge, thus testifying against themselves involuntarily. The hang-up isn't that they access your phone or meat locker, it's that you are compelled to give knowledge that only you know that then assists the state in obtaining evidence that may then be used against you.

    As for this case, I have no idea what the judge's reasoning is. Even the protections against giving up a passcode or password are not settled law and precedent is different in different districts. I really doubt this would hold up on appeal.
  • (Score: 2) by DannyB on Tuesday January 15 2019, @08:53PM (3 children)

    by DannyB (5839) Subscriber Badge on Tuesday January 15 2019, @08:53PM (#787052) Journal

    The meat locker analogy breaks down.

    The meat locker may contain evidence, but not every single detail of your entire life including the most private things that might be known about you. Things completely irrelevant to whether or not there are bodies in the meat locker.

    Your phone contains such comprehensive information. Being able to get into your phone should require a far higher bar to jump over than being able to get into a meat locker. There are unlikely to be any dead bodies inside a smartphone.

    --
    People today are educated enough to repeat what they are taught but not to question what they are taught.
    • (Score: 2) by mobydisk on Friday January 18 2019, @05:39PM (2 children)

      by mobydisk (5472) on Friday January 18 2019, @05:39PM (#788314)

      It does not break down because the warrant must state which things are extracted from the meat locker or the phone. So even if the hypothetical mobster kept all his personal information in the meat locker, they could not use that. The warrant would need to specifically state that they are searching for dead bodies. Part of the process is that the prosecutor will try to write the warrant as broadly as possible, and defense will try to reduce the scope of the warrant down as much as possible.

      US Constitution Amendment IV:

      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      • (Score: 2) by DannyB on Friday January 18 2019, @06:17PM (1 child)

        by DannyB (5839) Subscriber Badge on Friday January 18 2019, @06:17PM (#788331) Journal

        Here is a way the meat locker analogy breaks down.

        They don't make a copy of the meat locker and keep it. Forever.

        They do make a copy of your phone (generally) and keep it. Thus at a later point they can search for things (authorized or not) not covered by the warrant -- without anyone knowing.

        The meat locker remains on someone's real property and it is likely they would or at least could know if someone sneaks in again to conduct another secret search.

        Now you can argue that they don't make a copy of the phone and keep it forever. But how can you really know?

        It would seem like the only way might be for the phone owner's lawyer to be present at the actual event where the phone is searched for the specific subject material named in the warrant. Assuming there even is a warrant.

        I would suppose that not every case where they would try to force you to unlock your phone with your finger is being done under a warrant.

        These people (government and police) must be kept honest. Because without necessary checks and enforcement mechanisms it is extremely clear that they will not -- over time -- continue to stay honest.

        --
        People today are educated enough to repeat what they are taught but not to question what they are taught.
        • (Score: 2) by mobydisk on Monday January 21 2019, @09:47PM

          by mobydisk (5472) on Monday January 21 2019, @09:47PM (#789798)

          Fascinating point! Hmmmm....

  • (Score: 4, Interesting) by khallow on Tuesday January 15 2019, @09:22PM

    by khallow (3766) Subscriber Badge on Tuesday January 15 2019, @09:22PM (#787068) Journal

    If an evil mobster has a meat locker with the bodies of his last 14 victims, can we not compel him, with a warrant, to open the meat locker?

    Suppose it's not his meat locker? The fact that he is able to open the meat locker which supposedly doesn't belong to him can be used as evidence against him. Now, the real purpose of the Fifth Amendment is to protect the innocent not the guilty. So back to your hypothetical example, what happens if the "evil mobster" is a framed innocent man, the "fall guy"? The police or courts compel him to open the meat locker, say with a threat that he'll stay in prison until he does, and then some corrupt police officer gets the combination from the real mobster and feeds it to the fall guy. Now, they can claim that because the innocent man had the combination to the meat locker, then he must have been responsible for killing whoever was inside. The fall guy takes the fall.

  • (Score: 1, Insightful) by Anonymous Coward on Tuesday January 15 2019, @11:25PM

    by Anonymous Coward on Tuesday January 15 2019, @11:25PM (#787103)

    How is one self-incrimination but the other one is not?

    Because in one case, you're forcing the suspect to help you gather evidence against them, and in the other case, you're not. The latter case is how it should always be: A warrant enables the government to try to gather the evidence they need by themselves, but it should never entitle them to force the suspect to help them gather evidence.