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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, Interesting) by ikanreed on Tuesday January 15 2019, @05:04PM (6 children)
Isn't this almost perfectly analogous to forcing someone to open a combination safe with punitive charges for refusal?
Don't we already have a precedent for that? Serious question. I went looking and "safe, legal abortion" and this exact question pollute all the results I can find.
(Score: 0) by Anonymous Coward on Tuesday January 15 2019, @05:15PM
This ruling is in general case. It doesn't preclude filing a request to unlock by specific individual. This the court indicated is more likely to be granted.
(Score: -1, Troll) by Anonymous Coward on Tuesday January 15 2019, @05:22PM (4 children)
"Isn't this almost perfectly analogous to forcing someone to open a combination safe with punitive charges for refusal?"
NO.
A safe could contain many different things.
A phone contains personal information.
Listen, son, you're an idiot.
Quit posting your idiotic bullshit and smash your computer and go to the library and READ SOME BOOKS.
(Score: 2) by ikanreed on Tuesday January 15 2019, @05:29PM (3 children)
Once a warrant is issued for search of your property, "personal information" isn't at all sacrosanct, that's what makes it a "warrant" not an "arbitrary". That seems like a very silly distinction to draw. I am absolutely an idiot, but your reasoning here seems dumb even by my standards.
(Score: 3, Interesting) by deimtee on Tuesday January 15 2019, @10:33PM (2 children)
Are you required to actually help with a warranted search? People usually open the safe because the police will simply cut it open if they don't.
But hypothetically, if you had a safe made of unobtainium that was actually unbreakable, does a search warrant force you to open it?
I am specifically asking about the search warrant here. Whether a court order can direct you to open it is a different question.
If you cough while drinking cheap red wine it really cleans out your sinuses.
(Score: 2) by ikanreed on Tuesday January 15 2019, @10:42PM (1 child)
Fair questions. Like I said, I tried to find older precedent, but got stuck on all the nonsense attached to the word "safe".
(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.
(Score: 3, Insightful) by Anonymous Coward on Tuesday January 15 2019, @06:08PM
Doesn't seem like this will prevent anyone from unlocking your phone, since biometrics are not secrets. If this stands, it just means spooks need to use fake fingers or fake faces instead of the real ones, which might delay "authentication" by a few hours...
Use a real secret for authentication, i.e., a proper passphrase.
(Score: 3, Interesting) by mobydisk on Tuesday January 15 2019, @06:28PM (7 children)
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?
(Score: 3, Informative) by EvilSS on Tuesday January 15 2019, @06:41PM
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)
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.
The lower I set my standards the more accomplishments I have.
(Score: 2) by mobydisk on Friday January 18 2019, @05:39PM (2 children)
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:
(Score: 2) by DannyB on Friday January 18 2019, @06:17PM (1 child)
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.
The lower I set my standards the more accomplishments I have.
(Score: 2) by mobydisk on Monday January 21 2019, @09:47PM
Fascinating point! Hmmmm....
(Score: 4, Interesting) by khallow on Tuesday January 15 2019, @09:22PM
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
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.
(Score: 2) by DannyB on Tuesday January 15 2019, @08:56PM (2 children)
What if the police happen to find an abandoned, severed finger somewhere and it just happens to unlock your phone?
They'll say: it was an unintentional, happy accidental discovery that we found a key to the suspect's phone.
Sorry officer, my mistake. When I saw all the police cars parked here I thought I had found the donut shop I was looking for.
The lower I set my standards the more accomplishments I have.
(Score: 2) by krishnoid on Tuesday January 15 2019, @10:31PM (1 child)
Actually, do android/iOS phones provide for requiring all three, for extra security? Say you haven't used your phone for over 24 hours, can it be set to require all three of passcode, face, and finger?
(Score: 2) by DavePolaschek on Wednesday January 16 2019, @04:01PM
If your phone has hit the "you haven't used it for too long" trigger, the passcode alone is enough to unlock it. For iOS, there's no way to require more than that, as far as I know / can tell.
Similarly if you've hit the panic-button to lock your phone, the passcode (and only the passcode) will unlock it. See https://support.apple.com/en-us/HT208076 [apple.com]
(Score: 1, Troll) by realDonaldTrump on Tuesday January 15 2019, @09:16PM
"It can be 1, 2, 3, 4." So, I do 1, 2, 3, 4. And every time it's bing, bing, bing, bing to open my iPhone. It's very slow. And it doesn't always open on the first try. Or the second. I'm a busy guy, I don't have time for that. I said, change it to bank. So much easier. They said, "oh, that's bad, anybody can open your iPhone." And I'm like, so what? I'm not dumb, I don't keep any "secrets" on my iPhone. They want to look at it, let them do the Subpoena. And they can knock themselves out. If they don't know what Alessandra Ambrosio looks like, they'll find out. She looks SPECTACULAR, by the way. They want to see the notes about, I talked with Vladimir. The interpreter's notes. Well, they're not on my iPhone. And honestly, I don't know what happened to those. Like I said, busy guy. So sorry!!!
(Score: 0) by Anonymous Coward on Wednesday January 16 2019, @12:14AM
Feds *can* force you to unlock your iphone with finger or face. For example, FBI Man can cut off your finger, use it to unlock phone, and then say it fell off while you were resisting arrest.
(Score: 0) by Anonymous Coward on Wednesday January 16 2019, @01:21AM
No,
Technology is ignoring the law. And the companies predominantly responsible for that, are being abetted by the judiciary. Eventually somebody is going to show up who can articulate this problem in a way that resonates. When that happens it will be a good day to invest in cleaning materials.