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.
It doesn't matter. A warrant is a warrant -- it doesn't matter what is being searched -- home, office, car, boat, plane or phone.
Something people seem to forget is that we don’t have an absolute right to privacy. Read the constitution (specifically the 4th amendment.) We have rights against ‘unreasonable search and seizure.’ If a warrant is properly issued for probable cause then you have no right to privacy and the government has every right to search your home, file cabinet, computer or iPhone. If you don’t like that you can lobby to change the constitution, but I don’t think you’ll have much luck. The government’s right and ability to perform searches is as necessary to society as the the constitution. That is why the founding fathers specifically wrote it in.
The real question is whether biometrics fall under the 5th amendment or not. I would argue that they do not. You can be compelled to give a fingerprint that is then matched to one at a crime scene, or have your picture taken, so in my mind this is no different. It ultimately is something the courts will need to decide. As usual, the law and the courts lag behind technology, but it has to be that way.
As an aside, the courts have ruled in the past that police do not need a warrant if they can reasonably conclude that there is a risk of evidence being lost or destroyed during the delay needed to get a warrant. (There have been cases where such evidence was disallowed later when the courts determined that it was feasible to get a warrant.) If forced biometric unlocking is not covered under the 5th amendment then it would seem to apply that police could force you to unlock your device before the biometric unlock expires.
Something people seem to forget is that we don’t have an absolute right to privacy. Read the constitution (specifically the 4th amendment.) We have rights against ‘unreasonable search and seizure.’ If a warrant is properly issued for probable cause then you have no right to privacy and the government has every right to search your home, file cabinet, computer or iPhone. If you don’t like that you can lobby to change the constitution, but I don’t think you’ll have much luck. The government’s right and ability to perform searches is as necessary to society as the the constitution. That is why the founding fathers specifically wrote it in.
The real question is whether biometrics fall under the 5th amendment or not. I would argue that they do not. You can be compelled to give a fingerprint that is then matched to one at a crime scene, or have your picture taken, so in my mind this is no different. It ultimately is something the courts will need to decide. As usual, the law and the courts lag behind technology, but it has to be that way.
As an aside, the courts have ruled in the past that police do not need a warrant if they can reasonably conclude that there is a risk of evidence being lost or destroyed during the delay needed to get a warrant. (There have been cases where such evidence was disallowed later when the courts determined that it was feasible to get a warrant.) If forced biometric unlocking is not covered under the 5th amendment then it would seem to apply that police could force you to unlock your device before the biometric unlock expires.
“Something people seem to forget is that we don’t have an absolute right to privacy.”
Oh, boy. Here we go again. The Federal government exists because of the agreement (our Constitution) between the People in the separate States. The People don’t exist because of the Federal government.
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?
Ooh, bootlicker doctrine. Sorry but no, the cops aren’t always lawful and suspects aren’t always criminals. I’ve been pulled over and immediately disable biometrics. Cops have and will snoop on personal devices. Don’t be naive.
I’m much less uncomfortable with a search backed up by a warrant authorized by a judge. It’s unauthorized searches at gunpoint or under threat from cops, TSA, and ICE terrorists that don’t bother with due process that needs to be stopped cold. Broadly speaking I believe that biometrics should be protected as passcodes are.
Who said anything about the people existing for the good of the government? “For the people, by the people.” Yet that does not mean the people have unlimited rights and no responsibilities. Without rules and government, society devolves into anarchy. The point of the constitution is to lay a fundamental groundwork. Whether you view the constitution as granting rights or illuminating and enumerating rights, it also very clearly gives the government the right to reasonable search and seizure. (If you don’t think this should be the case, I’d love to hear your argument.) the question then becomes what is ‘reasonable.’ This has been the subject of innumerable court cases and is fairly clear in most cases. There are also not a small number of cases that have been thrown out because evidence was deemed inadmissible.
I am am not so naive as to believe the government is without fault or that it’s motives are always pure, but I also know that to function as a society there need to be certain rules and limits. If crime didn’t exist this discussion would be moot, but until we all achieve nirvana there will be rules we all need to play by.
This whole debate could be avoided if Apple allowed us to set certain fingers to unlock the iPhone and other fingers to wipe data from it. Neither the police nor courts are likely to use my fingers to unlock my iPhone if they knew that the wrong finger could wipe it out. The knowledge of which finger to use is essentially a password, wherein using the wrong password wipes the data from the device.
You are a very intelligent human. Submit as a feature request.
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. and by the time they get a warrant the device might actually power off, time out etc and require the passcode. heck someone could be shown a warrant and say they use their left thumb fully knowing they use their right and lock up the system that way. as long as they can pull off sounding innocent when it doesn't work. "geez i don't know why it's not working. my hands must be dry. it messes up the finger print. anyone got some lotion?"
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’.
I don’t know. The question is whether the fact that phone is secured with biometrics presents enough of a 5th Amendment challenge to overcome a duly-issued warrant. This obviously hasn’t been adjudicated finally yet but I suspect the answer is no. I assume you would concede that merely having a passcode would not be enough to overcome a warrant? The question is, why is a biometric locking device any different? The phone contains information...presumably just like a desktop computer, filing cabinet, or home does. All of these items and locations can be searched for specific information pursuant to a warrant. Here, the biometric lock is merely a mechanism. I think it would be difficult to have it considered any sort of testimony subject to non-self incrimination principles.
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?
I don’t think it’s been formally adjudicated at the highest level. I suspect it will end up that they can. Duly-issued warrants carry a lot of weight. Other court orders due as well. They can access your bank accounts. They could put you under electronics surveillance. They can search your home and workplace. Once there is a court order, I think it’s pretty difficult to make the argument but this falls under the fifth amendment.
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.
You obviously have rights as someone who has been charged with a crime. The government must overcome a high burden to convict you. However, warrants allow for a great level of invasive activity. As I stated above, court orders can be used to conduct surveillance, search and seizure, and even to get detailed financial information. You don’t think sensitive business and personal information is acquired during these operations? Now, if the government wants to misuse it and cause you harm, you would likely have a separate cause of action against them. If they abuse the warrant process, there are consequences. We are about to see that right now at the national level with the foreign intelligence surveillance court warrants (FISA). Those warrants are different than the standard criminal warrant, which just requires probable cause to obtain. The latter requires true and verified information because it involves secret surveillance of an American citizen. It seems like things are moving forward to where the officials responsible are going to face consequences. If something like this happened to you in a criminal proceeding (such as the police lying about probable cause or trying to use improperly obtained evidence —there are obviously collection procedures, but they must also only take what they specifically are looking for), officials would be held accountable and it would favor reasonable doubt.
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?
I don’t think it’s been formally adjudicated at the highest level. I suspect it will end up that they can. Duly-issued warrants carry a lot of weight. Other court orders due as well. They can access your bank accounts. They could put you under electronics surveillance. They can search your home and workplace. Once there is a court order, I think it’s pretty difficult to make the argument but this falls under the fifth amendment.
The trouble will be compelling someone to enter, write or speak the pass code. I mean an easy out here is "I don't remember it." How can this be disproven by the court and law enforcement?
That is a good ancillary point. I am not an attorney, but I do suspect there are a number of ways the government could compel you. One would be to hold you in contempt and jail you until you comply. I do wonder where it goes from there. If we are talking a major criminal enterprise, I would think someone could be charged with obstruction of justice for refusing to follow a warrant. If the government considers the contents of the device critical to its case, the broader issue becomes what it can do to force the manufacturer or enable a third party to provide access. This is tantamount to breaking down someone’s door (legally). In fact, the law as followed right now seems to indicate that forcing access by third-party is legal with a court order. The issue seems to be getting manufacturers like Apple to voluntarily create a back door for these situations. They seem very resistant to do that.
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?
I don’t think it’s been formally adjudicated at the highest level. I suspect it will end up that they can. Duly-issued warrants carry a lot of weight. Other court orders due as well. They can access your bank accounts. They could put you under electronics surveillance. They can search your home and workplace. Once there is a court order, I think it’s pretty difficult to make the argument but this falls under the fifth amendment.
The trouble will be compelling someone to enter, write or speak the pass code. I mean an easy out here is "I don't remember it." How can this be disproven by the court and law enforcement?
That is a good ancillary point. I am not an attorney, but I do suspect there are a number of ways the government could compel you. One would be to hold you in contempt and jail you until you comply. I do wonder where it goes from there. If we are talking a major criminal enterprise, I would think someone could be charged with obstruction of justice for refusing to follow a warrant. If the government considers the contents of the device critical to its case, the broader issue becomes what it can do to force the manufacturer or enable a third party to provide access. This is tantamount to breaking down someone’s door (legally). In fact, the law as followed right now seems to indicate that forcing access by third-party is legal with a court order. The issue seems to be getting manufacturers like Apple to voluntarily create a back door for these situations. They seem very resistant to do that.
My understanding is that providing the passcode to your device is protected under the 5th amendment, assuming you are the one the police are investigating. The question that hasn’t been fully addressed by the courts yet is whether providing a fingerprint or looking at your device considered self incrimination? My understanding is that the courts have been pretty consistent in saying that fingerprints are not protected by the 5th amendment. If that is the case, using your facial image for Face ID would seem to fall under the same category.
Here’s another hypothetical question: ‘backdoors’ have been shown not to work. (Or rather work too well.) any secret key is never kept secret for long and device security is all but useless. What about providing a way for authorities to either disable the time limit, the allowed number of attempts or the eye/attention detection features of Touch ID/Face ID? This would not be a complete backdoor and would still require the actual person, but would provide a degree access without totally destroying security. It would also eliminate the time constraint so authorities would have no excuse for not obtaining a full and formal search warrant.
Who said anything about the people existing for the good of the government? “For the people, by the people.” Yet that does not mean the people have unlimited rights and no responsibilities. Without rules and government, society devolves into anarchy. The point of the constitution is to lay a fundamental groundwork. Whether you view the constitution as granting rights or illuminating and enumerating rights, it also very clearly gives the government the right to reasonable search and seizure. (If you don’t think this should be the case, I’d love to hear your argument.) the question then becomes what is ‘reasonable.’ This has been the subject of innumerable court cases and is fairly clear in most cases. There are also not a small number of cases that have been thrown out because evidence was deemed inadmissible.
I am am not so naive as to believe the government is without fault or that it’s motives are always pure, but I also know that to function as a society there need to be certain rules and limits. If crime didn’t exist this discussion would be moot, but until we all achieve nirvana there will be rules we all need to play by.
You failed to quote the person to whom you were responding, so I’ll reply.
The Constitution doesn’t ‘grant rights’, it enumerates some which are constitutionally protected by the Federal government. And nothing you’ve asserted changes the fact that in the US, the Federal government only exists because of the agreement between the States, aka the US Constitution. If ever there comes a time that the Federal government violates the Constitution and our Bill of Rights to a degree that the people revolt, they may choose at that time to dissolve the agreement between the States.
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?
First of all, a search warrant must be issued by a judge and those applying for the warrant must show probable cause. Second, a search warrant does not legally imply guilt, only probable cause for the warrant to be issued. So if your device has private information on it so be it. It is immaterial. So many comments are basically saying that authorities have no right whatsoever, under any circumstances, to search your mobile device even with a warrant issued by a judge. That’s simply not true and never has been.
Who said anything about the people existing for the good of the government? “For the people, by the people.” Yet that does not mean the people have unlimited rights and no responsibilities. Without rules and government, society devolves into anarchy. The point of the constitution is to lay a fundamental groundwork. Whether you view the constitution as granting rights or illuminating and enumerating rights, it also very clearly gives the government the right to reasonable search and seizure. (If you don’t think this should be the case, I’d love to hear your argument.) the question then becomes what is ‘reasonable.’ This has been the subject of innumerable court cases and is fairly clear in most cases. There are also not a small number of cases that have been thrown out because evidence was deemed inadmissible.
I am am not so naive as to believe the government is without fault or that it’s motives are always pure, but I also know that to function as a society there need to be certain rules and limits. If crime didn’t exist this discussion would be moot, but until we all achieve nirvana there will be rules we all need to play by.
You failed to quote the person to whom you were responding, so I’ll reply.
The Constitution doesn’t ‘grant rights’, it enumerates some which are constitutionally protected by the Federal government. And nothing you’ve asserted changes the fact that in the US, the Federal government only exists because of the agreement between the States, aka the US Constitution. If ever there comes a time that the Federal government violates the Constitution and our Bill of Rights to a degree that the people revolt, they may choose at that time to dissolve the agreement between the States.
I addressed your point in my other post, but whatever your view on individual rights, the constitution specifically gives the government the right to search and seize property with a duly issued warrant. There is no constitutional crisis here. You can rant away but it doesn’t change the fact that rights are not infinite. If you feel they are, please explain how you expect society to function and laws to be enforced.
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.
Well the police are free to drill open that iphone after they get their warrant. Just cause they have a warrant doesn’t mean you have to help them execute it. You’re only obligated to not get in their way.
Comments
The real question is whether biometrics fall under the 5th amendment or not. I would argue that they do not. You can be compelled to give a fingerprint that is then matched to one at a crime scene, or have your picture taken, so in my mind this is no different. It ultimately is something the courts will need to decide. As usual, the law and the courts lag behind technology, but it has to be that way.
As an aside, the courts have ruled in the past that police do not need a warrant if they can reasonably conclude that there is a risk of evidence being lost or destroyed during the delay needed to get a warrant. (There have been cases where such evidence was disallowed later when the courts determined that it was feasible to get a warrant.) If forced biometric unlocking is not covered under the 5th amendment then it would seem to apply that police could force you to unlock your device before the biometric unlock expires.
Oh, boy. Here we go again. The Federal government exists because of the agreement (our Constitution) between the People in the separate States. The People don’t exist because of the Federal government.
I am am not so naive as to believe the government is without fault or that it’s motives are always pure, but I also know that to function as a society there need to be certain rules and limits. If crime didn’t exist this discussion would be moot, but until we all achieve nirvana there will be rules we all need to play by.
Edit: @Charlituna good to see you back onboard
process, there are consequences. We are about to see that right now at the national level with the foreign intelligence surveillance court warrants (FISA). Those warrants are different than the standard criminal warrant, which just requires probable cause to obtain. The latter requires true and verified information because it involves secret surveillance of an American citizen. It seems like things are moving forward to where the officials responsible are going to face consequences. If something like this happened to you in a criminal proceeding (such as the police lying about probable cause or trying to use improperly obtained evidence —there are obviously collection procedures, but they must also only take what they specifically are looking for), officials would be held accountable and it would favor reasonable doubt.
Here’s another hypothetical question: ‘backdoors’ have been shown not to work. (Or rather work too well.) any secret key is never kept secret for long and device security is all but useless. What about providing a way for authorities to either disable the time limit, the allowed number of attempts or the eye/attention detection features of Touch ID/Face ID? This would not be a complete backdoor and would still require the actual person, but would provide a degree access without totally destroying security. It would also eliminate the time constraint so authorities would have no excuse for not obtaining a full and formal search warrant.
The Constitution doesn’t ‘grant rights’, it enumerates some which are constitutionally protected by the Federal government. And nothing you’ve asserted changes the fact that in the US, the Federal government only exists because of the agreement between the States, aka the US Constitution. If ever there comes a time that the Federal government violates the Constitution and our Bill of Rights to a degree that the people revolt, they may choose at that time to dissolve the agreement between the States.
Also see lkrupp’s Post above.