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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.
(Score: 4, Informative) by AthanasiusKircher on Wednesday January 16 2019, @03:07AM
IANAL but the cases you are looking for are Fisher vs. U.S. (1976), Doe vs. U.S. (1988), and U.S. vs. Hubbell (2000).
Briefly, Fisher established the so-called "Act of Production" doctrine which limits the cases where people may be compelled to create communications or documents that may incriminate them. This is against the Fifth Amendment right against self-incrimination.
By extension, Justice Stevens made an analogy in Doe (1988) that a warrant may compell someone to produce a key for a safe (i.e. a physical object), but may not be completed to produce a combination for a safe (i.e., an act of production that communicates something which may self-incriminate). This was in a dissent, mind you, but the analogy was mentioned with approval in the majority decision in a footnote.
Fast forward to 2000, where Hubbell gave further weight to the distinction from Doe again in a different scenario (about producing documents). The distinction is still viewed a bit as dicta (i.e. Supreme Court stuff in a decision that doesn't necessarily carry the weight of precedent because it's not essential to the decision).
This sort of thing has been undermined in recent years as people have been compelled to produce passcodes and such. The novelty of the present decision is that it seems to go even stronger in the way of privacy rights -- the prior SCOTUS dicta would suggest that a fingerprint is a physical object rather than "testimonial" and obviously you can be forced to give your fingerprints by court order... It normally wouldn't fall under 5th amendment protection according to recent precedent.
Two final notes: (1) This is a very unsettled aspect of federal law, with conflicting decisions in recent years and little SCOTUS guidance. (2) None of this prohibits a warrant from allowing police to break into stuff if they need to -- you may have the legal right to refuse to give a safe combination, but the police can force it open if they have a valid warrant to search inside it.