Massachusetts judge granted warrant to unlock suspects iPhone with Touch ID

Posted:
in iPhone
Law enforcement can compel a suspect to unlock their iPhone using Touch ID under a warrant, a Massachusetts federal judge ruled in April, muddying the waters in the ongoing battle in courts over whether the contents of a mobile device secured with biometrics are protected by the Fifth Amendment, or not.




The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) requested a search warrant that allowed agents to press a suspect's fingers against iPhones found at his apartment in Cambridge, using the digits to unlock the devices via Touch ID. The suspect, Robert Brito-Pina, was thought to have performed gun trafficking, and due to being a convict, was barred from owning any guns at all.

The warrant was issued on April 18 and expired on May 2, but it is unclear if the ATF managed to make use of the warrant during that time, reports Sophos. The warrant included arguments over how there was a limited window available before the iPhones would require a passcode to unlock it, something which likely helped the rapid granting of the warrant.

The iPhone was likely to contain evidence of Brito-Pina's alleged activities, with evidence that led to the suspect largely consisted of data from other smartphones and warrants served to Google. Text messages, locations for drop-offs in Waze, and photographs of illegal guns were discovered, along with communications about the sales and purchases of firearms.

The issued warrant is the latest in a number of decisions by judges as to whether or not law enforcement officials should be allowed to take advantage of biometric security and the availability of a suspect to access data on a mobile device. While passcoded devices are usually enough to protect suspects from having their smartphones searched by the letter of the law, biometric security is considered fair game for abuse.

A January court filing in California revealed another judge denied the use of a warrant to perform a biometric security unlock, with the request denied for running "afoul of the Fourth and Fifth Amendments." The judge declared the warrant was too "overbroad" in targeting any devices at a crime scene owned by anyone, rather than specific devices owned by the suspect as in the latest case.

For the January warrant attempt, it was reasoned that, while a user can state a passcode as a "testimonial communication," biometrics cannot be used in the same way as they can be acquired via unwilling means, such as forcing a suspect to touch the Home button on an iPhone, or holding a Face ID-equipped device to the suspect's face for a moment.

It was deemed that, if a person could not be compelled to provide the passcode, the same should apply for a finger, thumb, iris, face, or other biometric feature. "A biometric feature is analogous to the 20 nonverbal, physiological responses elicited during a polygraph test, which are used to determine guilt or innocence, and are considered testimonial," wrote Judge Kanis Westmore in January.

As the April warrant was limited in scope, and specific to the suspect's fingers and the suspect's iPhone, and very specifically not other people in the vicinity or devices that weren't iPhones in regards to unlocking. It is also not a green light for all law enforcement officials to use biometric security immediately upon device seizure, as warrants will continue to be required in such cases.

These are far from the only times law enforcement have attempted to use biometric security to gain access to mobile devices.

In 2016, one woman was made to use her fingerprint to unlock an iPhone confiscated from a property owned by an Armenian Power gang member, at the time in prison for unrelated charges. Police have also used fingers of corpses to attempt to unlock iPhones, albeit with limited success.

The FBI ordered the unlocking of an iPhone X via Face ID in August 2018, as part of a child abuse investigation in Columbus. The introduction of Face ID has also led to a forensic firm warning police to avoid looking at the screen of an iPhone X or similarly-equipped device, to avoid accidentally attempting an unlock that would automatically fail.

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Comments

  • Reply 1 of 58
    jungmarkjungmark Posts: 6,692member
    A warrant is a warrant. However people should disable biometrics if they encounter authorities. 

    On iPhone 5s to iPhones 7:

    • Click the Sleep/Wake (On/Off) button five times in succession. 

    On iPhones 8 and iPhone X:

    • Squeeze the Side button and either Volume Up or Volume Down
    edited May 3 libertyforalldamn_its_hotSoliArloTimetravelerMisterKitfastasleeptyler82baconstangsdw2001leftoverbacon
  • Reply 2 of 58
    uraharaurahara Posts: 229member
    jungmark said:
    A warrant is a warrant. However people should disable biometrics if they encounter authorities. 
    Give access to the Phone if there is a warrant.
    christophb
  • Reply 3 of 58
    commentzillacommentzilla Posts: 195member
    urahara said:
    jungmark said:
    A warrant is a warrant. However people should disable biometrics if they encounter authorities. 
    Give access to the Phone if there is a warrant.
    What if I have sensitive non-criminal business or personal information on my phone? I have a right to privacy. If they want to search, I shouldn't have to help them. Just because I'm charged with a crime doesn't mean I committed a crime or that I'm guilty.
    damn_its_hotMisterKitbonobobfahlmanSpamSandwichjbdragonredgeminipabeowulfschmidtllamaleftoverbacon
  • Reply 4 of 58
    georgie01georgie01 Posts: 242member
    The depressing thing about this is not whether law enforcement can insist someone unlock their phone with biometrics, but rather that the spirit of the 5th amendment is not on the mind of anyone who supports forced unlocking with biometrics. If a passcode is protected then biometrics, just another version of a passcode, should be protected. It’s taking advantage of a ‘loophole’ that exists simply because those responsible for the 5th amendment had no way to anticipate biometrics.

    This kind of approach to law, however well meaning the supporters may be, is what is eroding our country—the arrogance that we know better than our founders while we’re standing on the success they built... not realising that things are different now only because we’ve been slowly abandoning what they built in the name of ‘progress’.
    edited May 3 dewmedesignrjbdragonredgeminipaStrangeDaysbaconstang
  • Reply 5 of 58
    designrdesignr Posts: 503member
    As I understand it though, current legal doctrine and precedent in the US at least, is they cannot compel you to enter or otherwise give your passcode. Is that correct?
    leftoverbacon
  • Reply 6 of 58
    lkrupplkrupp Posts: 7,085member
    georgie01 said:
    The depressing thing about this is not whether law enforcement can insist someone unlock their phone with biometrics, but rather that the spirit of the 5th amendment is not on the mind of anyone who supports forced unlocking with biometrics. If a passcode is protected then biometrics, just another version of a passcode, should be protected. It’s taking advantage of a ‘loophole’ that exists simply because those responsible for the 5th amendment had no way to anticipate biometrics.

    This kind of approach to law, however well meaning the supporters may be, is what is eroding our country—the arrogance that we know better than our founders while we’re standing on the success they built... not realising that things are different now only because we’ve been slowly abandoning what they built in the name of ‘progress’.
    Oh get over yourself. “Eroding our country...” God that’s melodramatic nonsense. It’s no different than the police asking you to open your safe. If they have search a warrant and you refuse, they drill it open. Or they cut the padlock off your storage locker if you refuse to give them the key. Or they ask you to open your door, you refuse, and they use a battering ram to gain entrance. How often do we see on television law enforcement agents hauling off computers, file cabinets, hard drives after serving a search warrant.You refuse to unlock your phone and they open it with your fingerprint. In fact what’s “eroding our country” is that the law has not caught up with technology yet and criminals are hiding behind archaic concepts of self incrimination. You are not testifying against yourself when you comply with a warrant. We need more judges to understand this, not fewer.
    GeorgeBMacMplsPjony0
  • Reply 7 of 58
    T.j.p.T.j.p. Posts: 24member
    Use your nose. Click 5 times quickly on the power button. Use longer complex passcodes. Apple gives the tools for privacy if you use them.
    baconstang
  • Reply 8 of 58
    lkrupplkrupp Posts: 7,085member

    urahara said:
    jungmark said:
    A warrant is a warrant. However people should disable biometrics if they encounter authorities. 
    Give access to the Phone if there is a warrant.
    What if I have sensitive non-criminal business or personal information on my phone? I have a right to privacy. If they want to search, I shouldn't have to help them. Just because I'm charged with a crime doesn't mean I committed a crime or that I'm guilty.
    So what if you have "sensitive non-criminal business or personal information” in a file cabinet along with your incriminating documents. With a warrant the police can open your file cabinet and search it without your permission. If you have it locked they can drill the lock without your permission. Your phone is no different than your file cabinet. These straw man 5th Amendment  scenarios pop up every time a locked phone is involved.
    GeorgeBMacjony0
  • Reply 9 of 58
    lkrupplkrupp Posts: 7,085member

    jungmark said:
    A warrant is a warrant. However people should disable biometrics if they encounter authorities. 

    On iPhone 5s to iPhones 7:

    • Click the Sleep/Wake (On/Off) button five times in succession. 

    On iPhones 8 and iPhone X:

    • Squeeze the Side button and either Volume Up or Volume Down
    So you are in the business of advising criminals how to avoid a warrant?
  • Reply 10 of 58
    designrdesignr Posts: 503member
    lkrupp said:

    jungmark said:
    A warrant is a warrant. However people should disable biometrics if they encounter authorities. 

    On iPhone 5s to iPhones 7:

    • Click the Sleep/Wake (On/Off) button five times in succession. 

    On iPhones 8 and iPhone X:

    • Squeeze the Side button and either Volume Up or Volume Down
    So you are in the business of advising criminals how to avoid a warrant?

    So you are in the business of advising people how to legally protect the contents of their iPhone?

    TFTFY
    socalbrianredgeminipabaconstangelijahgbeowulfschmidtllamaleftoverbacon
  • Reply 11 of 58
    macxpressmacxpress Posts: 4,873member
    lkrupp said:

    jungmark said:
    A warrant is a warrant. However people should disable biometrics if they encounter authorities. 

    On iPhone 5s to iPhones 7:

    • Click the Sleep/Wake (On/Off) button five times in succession. 

    On iPhones 8 and iPhone X:

    • Squeeze the Side button and either Volume Up or Volume Down
    So you are in the business of advising criminals how to avoid a warrant?
    Are you the FBI? You seemed a little miffed by all of this. So we as citizens aren't supposed to have rights anymore? The constitution is outdated and should be brought up to speed with the times IMO. 
    redgeminipabaconstangcurtis hannahelijahg
  • Reply 12 of 58
    linkmanlinkman Posts: 909member
    designr said:
    As I understand it though, current legal doctrine and precedent in the US at least, is they cannot compel you to enter or otherwise give your passcode. Is that correct?
    That should be true, but some instances seem to have trampled on the 5th amendment lately. Recently it seems that upon entering the country at the border they can require it (this is different than being compelled in a criminal trial however). This case certainly appears to contradict the self-incrimination clause: https://www.bostoncriminallawyersblog.com/massachusetts-appeals-court-affirms-contempt-order-petitioner-unlock-iphone/
    Edit: this one too: http://www.fox13news.com/news/local-news/judge-jails-man-for-failing-to-unlock-phones
    edited May 3 redgeminipawonkothesanebaconstang
  • Reply 13 of 58
    designrdesignr Posts: 503member
    macxpress said:
    lkrupp said:

    jungmark said:
    A warrant is a warrant. However people should disable biometrics if they encounter authorities. 

    On iPhone 5s to iPhones 7:

    • Click the Sleep/Wake (On/Off) button five times in succession. 

    On iPhones 8 and iPhone X:

    • Squeeze the Side button and either Volume Up or Volume Down
    So you are in the business of advising criminals how to avoid a warrant?
    Are you the FBI? You seemed a little miffed by all of this. So we as citizens aren't supposed to have rights anymore? The constitution is outdated and should be brought up to speed with the times IMO. 
    Apparently Lkrupp agrees with you but in a different way:

    lkrupp said:
    archaic concepts of self incrimination
    Yikes.
    edited May 3 baconstangelijahg
  • Reply 14 of 58
    designrdesignr Posts: 503member
    linkman said:
    designr said:
    As I understand it though, current legal doctrine and precedent in the US at least, is they cannot compel you to enter or otherwise give your passcode. Is that correct?
    That should be true, but some instances seem to have trampled on the 5th amendment lately. Recently it seems that upon entering the country at the border they can require it (this is different than being compelled in a criminal trial however). This case certainly appears to contradict the self-incrimination clause: https://www.bostoncriminallawyersblog.com/massachusetts-appeals-court-affirms-contempt-order-petitioner-unlock-iphone/
    Edit: this one too: http://www.fox13news.com/news/local-news/judge-jails-man-for-failing-to-unlock-phones
    On the second one I can't imagine this be upheld on appeal. How do you hold someone in contempt for no t remembering something? You have to prove he's lying. How do you do that? I suspect this will be overturned on appeal and set a good precedent. I mean seriously how do you prove what's in a person's brain...which is what you'd have to do in this example I think.

    The first seems in the same realm (though we don't know in what way the person refused...is this the same case).

    I suspect that ultimately compelling (warrant or not) someone to produce the code that's in their brain will be deemed a 5th amendment violation.

    baconstang
  • Reply 15 of 58
    jungmarkjungmark Posts: 6,692member
    lkrupp said:

    jungmark said:
    A warrant is a warrant. However people should disable biometrics if they encounter authorities. 

    On iPhone 5s to iPhones 7:

    • Click the Sleep/Wake (On/Off) button five times in succession. 

    On iPhones 8 and iPhone X:

    • Squeeze the Side button and either Volume Up or Volume Down
    So you are in the business of advising criminals how to avoid a warrant?
    Not everyone who is subject to a search warrant is guilty. What if you have pictures, emails, text messages that are private? 
    designrredgeminipabaconstangelijahg
  • Reply 16 of 58
    maestro64maestro64 Posts: 4,568member
    designr said:
    As I understand it though, current legal doctrine and precedent in the US at least, is they cannot compel you to enter or otherwise give your passcode. Is that correct?
    Correct, since you have right to say anything to self incriminate.

    But this case is no surprise, with a warrant the police have wider discretion. As long as the warrant is specific.
  • Reply 17 of 58
    designrdesignr Posts: 503member
    maestro64 said:
    designr said:
    As I understand it though, current legal doctrine and precedent in the US at least, is they cannot compel you to enter or otherwise give your passcode. Is that correct?
    Correct, since you have right to say anything to self incriminate.

    But this case is no surprise, with a warrant the police have wider discretion. As long as the warrant is specific.
    What I've understood the biometric loophole to be about is that your fingerprint is not speech or testimony. It why they can fingerprint and mugshot you. The basic thing is that the fingerprint (or retina pattern) is something about you physically, but the passcode is basically knowledge and speech.
    llamaleftoverbacon
  • Reply 18 of 58
    redraider11redraider11 Posts: 159member
    lkrupp said:
    georgie01 said:
    The depressing thing about this is not whether law enforcement can insist someone unlock their phone with biometrics, but rather that the spirit of the 5th amendment is not on the mind of anyone who supports forced unlocking with biometrics. If a passcode is protected then biometrics, just another version of a passcode, should be protected. It’s taking advantage of a ‘loophole’ that exists simply because those responsible for the 5th amendment had no way to anticipate biometrics.

    This kind of approach to law, however well meaning the supporters may be, is what is eroding our country—the arrogance that we know better than our founders while we’re standing on the success they built... not realising that things are different now only because we’ve been slowly abandoning what they built in the name of ‘progress’.
    Oh get over yourself. “Eroding our country...” God that’s melodramatic nonsense. It’s no different than the police asking you to open your safe. If they have search a warrant and you refuse, they drill it open. Or they cut the padlock off your storage locker if you refuse to give them the key. Or they ask you to open your door, you refuse, and they use a battering ram to gain entrance. How often do we see on television law enforcement agents hauling off computers, file cabinets, hard drives after serving a search warrant.You refuse to unlock your phone and they open it with your fingerprint. In fact what’s “eroding our country” is that the law has not caught up with technology yet and criminals are hiding behind archaic concepts of self incrimination. You are not testifying against yourself when you comply with a warrant. We need more judges to understand this, not fewer.
    If you refuse to open a safe and police have to drill it open, then why shouldn’t the same be said of your phone? Using your logic they should have to crack the encryption on your phone, not use your biometric password. Check yourself. 
    designrfahlmanredgeminipabaconstangbeowulfschmidt
  • Reply 19 of 58
    Johan42Johan42 Posts: 163member
    urahara said:
    jungmark said:
    A warrant is a warrant. However people should disable biometrics if they encounter authorities. 
    Give access to the Phone if there is a warrant.
    What if I have sensitive non-criminal business or personal information on my phone? I have a right to privacy. If they want to search, I shouldn't have to help them. Just because I'm charged with a crime doesn't mean I committed a crime or that I'm guilty.
    Get over yourself. The government doesn’t care about your “non-criminal business or personal” information. And the best way to get off the hook for a crime you didn’t commit is to show them everything you got.
  • Reply 20 of 58
    designrdesignr Posts: 503member
    Johan42 said:
    urahara said:
    jungmark said:
    A warrant is a warrant. However people should disable biometrics if they encounter authorities. 
    Give access to the Phone if there is a warrant.
    What if I have sensitive non-criminal business or personal information on my phone? I have a right to privacy. If they want to search, I shouldn't have to help them. Just because I'm charged with a crime doesn't mean I committed a crime or that I'm guilty.
    And the best way to get off the hook for a crime you didn’t commit is to show them everything you got.
    Nope.
    jbdragonredgeminipabaconstangyoyo2222llamaleftoverbacon
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