Judge rules against forcing suspects to unlock phones with Touch ID or Face ID

Posted:
in General Discussion edited August 2020
US Magistrate Judge Virginia Demarchi is the latest to rule against forced use of biometrics by law enforcement, saying such systems come under the protection of the Fifth Amendment.

Using Touch ID to unlock an iPhone
Using Touch ID to unlock an iPhone


US Magistrate Judge Virginia Demarchi, of the Northern District of California, has ruled that unlocking a device such as an iPhone is "inherently testimonial." She said it amounted to forcing incriminating testimony from an individual.

"Here, compelling an individual who is a target of the investigation to use his or her finger or face to unlock a device represents incriminating testimony within the meaning of the Fifth Amendment," she said. Judge Demarchi also addressed the fact that law enforcement bodies are now repeatedly arguing a case that such unlocking is required.

"Several magistrate judges and district court judges across the country, as well as a few state courts, have recently addressed the specific question of whether compelled application of a biometric feature to an electronic device is a testimonial communication," said Judge Demarchi.

"This Court agrees with those courts," she continued, "that have concluded that requiring an individual to use a biometric feature to unlock an electronic device so that its contents may be accessed is an act of production that is inherently testimonial in the context of a criminal investigation."

In her ruling, Judge Demarchi explained that such unlocking using biometrics implies certain points that are the equivalent of providing testimony.

"Because it amounts to an assertion of fact that the individual has the ability to unlock the device," she said, "which in turn makes it more like that the individual locked the device and put the material sought by the warrant on the device."

Judge Demarchi's follows a similar case in Idaho in May this year and another California ruling in January.

However, also in May this year, a Massachusetts judge did grant a warrant to allow agents of the Bureau of Alcohol, Tobacco and Firearms to compel a suspect to use Touch ID to unlock his iPhone.

SpamSandwich
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Comments

  • Reply 1 of 50
    irelandireland Posts: 17,743member
    Individuals with such power of individuals. One just hopes they make the right decision, because either way their take effects us all. 
  • Reply 2 of 50
    On one hand I can see the "inherently testimonial" argument on this.

    On the other hand, how is a warrant to unlock a device via Face ID or Touch ID different than a warrant to allow police into your house to search for something?

    robertsmlkruppberndogjbaughFileMakerFellerCarnage
  • Reply 3 of 50
    86hawkeye said:
    On one hand I can see the "inherently testimonial" argument on this.

    On the other hand, how is a warrant to unlock a device via Face ID or Touch ID different than a warrant to allow police into your house to search for something?


    Thats the exact same scenario that jumped into my head.  It’s the sAme thing.  A warrant to allow police to search a house or car or is no different than a warrant to search a phone.  
  • Reply 4 of 50
    designrdesignr Posts: 578member

    "Because it amounts to an assertion of fact that the individual has the ability to unlock the device," she said, "which in turn makes it more like that the individual locked the device and put the material sought by the warrant on the device."
    This is the key argument.
    cornchipnetmagemacgui
  • Reply 5 of 50
    designrdesignr Posts: 578member
    86hawkeye said:
    On one hand I can see the "inherently testimonial" argument on this.

    On the other hand, how is a warrant to unlock a device via Face ID or Touch ID different than a warrant to allow police into your house to search for something?

    I'll curious on this one too. On the one hand the argument may be made that you cannot actively obstruct the execution of the warrant, it may be seen that a device already locked and you not unlocking it (passive) might not be considered an active obstruction of the warrant. This would likely be similar to the case where they have a search warrant for a combination safe. They can cut the safe open. You cannot actively obstruct them from doing that. But I believe they cannot compel you to communicate the combination or force you (and active act) to enter the combination. Thus ruling seems to place the biometric action in that same category.

    bonobobMplsPdysamoriauraharanetmageFileMakerFeller
  • Reply 6 of 50
    I would like to know how many times actionable intelligence or any relevant evidence was found in cases where someone was forced to unlock their phone. 

    Is it really the case that these criminals are storing documents or not deleting texts that could be used as evidence against them? It very well could be and I’d love to hear about it. 
    cornchipMisterKitwatto_cobra
  • Reply 7 of 50
    22july201322july2013 Posts: 2,102member
    Well even if the courts can't compel a person's biometrics (face, finger, eyes, etc.) to be used IN-PERSON to unlock a device, I'm sure that doesn't mean that the police can't use simulated biometrics to unlock it, assuming they have a copy of your fingerprint or photos of your face, which aren't hard to get. E.g., if the biometrics being used is Face ID, then the police can build a physical face. If the police have your fingerprint, they can build a fake finger. Right now this costs thousands of dollars but the price should come down as technology improves. 

    But don't worry, all California court decisions get overturned by the US Supreme Court. It certainly makes sense that the Fifth Amendment protects the contents of your mind but it probably doesn't protect the content of your biometrics. 

    P.S. I do live in a country with a constitution and that constitution has a similar phrase to the Fifth Amendment, so the issue is relevant to me. I look forward to seeing how the US works this out. 
  • Reply 8 of 50
    mjtomlinmjtomlin Posts: 2,422member
    86hawkeye said:
    On one hand I can see the "inherently testimonial" argument on this.

    On the other hand, how is a warrant to unlock a device via Face ID or Touch ID different than a warrant to allow police into your house to search for something?


    Because it takes no action on the "suspects" part to gain access to the house and search it. The idea behind the law is that you cannot compel an individual to take part in their own incrimination. This is why entrapment is illegal as well as coercing a suspect in any way.

    A warrant gives authority to gain access and search. It does not void a "suspects" 5th Admendmant right, which is the right to stand aside and do nothing and remain silent.
    edited August 2019 TomPMRIMplsPCloudTalkinrapcatmeowdysamoriauraharadesignrfh-acenetmageFileMakerFeller
  • Reply 9 of 50
    This is a silly ruling that will be overturned if appealed. It's not "testimonial" any more than saying it violates your fifth amendment to produce the key (via a warrant) to your safe deposit box, because, as this judge ignorantly asserted  "makes it more like that the individual locked the device and put the material sought by the warrant on the device." It just goes to show that just because some politician appointed you to the bench, it doesn't mean you're very smart.  
  • Reply 10 of 50
    MplsPMplsP Posts: 2,937member
    86hawkeye said:
    On one hand I can see the "inherently testimonial" argument on this.

    On the other hand, how is a warrant to unlock a device via Face ID or Touch ID different than a warrant to allow police into your house to search for something?

    The difference isn't in what the police are authorized to search, the difference is in how they gain access. In a house they can easily break the lock if they don't have a key. With electronic devices, the 'locks' (i.e. encryption) are too strong to be broken. The key is either a password, a fingerprint or a face. The judge's ruling effectively states that being compelled to provide the key is a violation of 5th amendment rights. (Edit: What @mjtomlin said in his/her post) 


    What I find interesting is that you cannot refuse to have your mug shot taken or to be fingerprinted, so how is that different? From the reading I've done there are multiple, discordant rulings and opinions on this subject. what we really need is a Supreme Court ruling and/or a law to settle the issue.
    edited August 2019 anantksundaramFileMakerFellerMisterKit
  • Reply 11 of 50
    lkrupplkrupp Posts: 9,003member
    I understand the principle of limiting the government’s ability to compel one to open their phones for inspection. I also agree with the 5th Amendment prohibition against self incrimination. But freedom is not free. Enforcing these prohibitions means we as a society have to accept the fact that crime will continue to rise and victims will continue to be robbed and murdered. I live near St. Louis which made the national news this week because 13 children have been gunned down in the streets this month alone. Protests are being organized demanding the police department DO SOMETHING. But these same protesters don’t want surveillance cameras in their neighborhood, are scared to report anything to the police. They want gun control as if that would change anything and the 2nd Amendment is blocking those efforts.

    I’m sure the very people posting here about the 5th Amendment and unlocking phones are probably just fine with legislation outlawing guns in the hands of the public and want the 2nd Amendment repealed. Again, freedom is not free and we need to accept the price of that freedom.

    An incident in my on town some twenty years ago still sticks in people’s craws. A woman murdered her boyfriend, cut him up into pieces and stuffed him into a garbage can. She was in an upstairs apartment. She rented a Rug Doctor from a local store in an attempt to clean up the blood. The downstairs apartment occupant noticed a red liquid running down her wall and called police. They knocked on the upstairs apartment and the woman let them in. One of the officers saw the garbage can and lifted the lid to find the dismembered body. The case was dismissed because the officer didn’t have a search warrant to open that lid and the garbage can and dismembered body were ruled inadmissible evidence. Blame the cop if you want but the woman got away scot free with murder. Tell the family of the victim it’s the price of freedom and too bad for you.
    edited August 2019 FileMakerFeller
  • Reply 12 of 50

    mjtomlin said:
    86hawkeye said:
    On one hand I can see the "inherently testimonial" argument on this.

    On the other hand, how is a warrant to unlock a device via Face ID or Touch ID different than a warrant to allow police into your house to search for something?


    Because it takes no action on the "suspects" part to gain access to the house and search it. The idea behind the law is that you cannot compel an individual to take part in their own incrimination. This is why entrapment is illegal as well as coercing a suspect in any way.

    A warrant gives authority to gain access and search. It does not void a "suspects" 5th Admendmant right, which is the right to stand aside and do nothing and remain silent.
    No, no, no!  The Fifth Amendment doesn't mean "you cannot compel an individual to take part in their own incrimination."  Our schools do a disservice to our great Republic by not educating people properly about the Bill of Rights and what they mean. 

    The 5th Amendment to the US Constitution was designed to protect people from the government forcing an individual to TESTIFY against themselves.  You have never had the right to "stand aside and do nothing."  That's why the Supreme Court has consistently ruled that the police can FORCE you to do all sort of things that incriminate you, such as forcing you to provide your fingerprints, give blood, saliva, etc. Heck, it's required that you provide your name and other information to law enforcement in many circumstances, such as when you are being issued a citation or arrested.  The courts have consistently ruled that providing such information is not "testimonial" in terms of the 5th Amendment even though providing your own name may incriminate you, e.g., you are wanted in a crime, etc.  It's why they can force you to give up the key to the safe deposit box or to your car or your house, all of which "compel you to take part in your own incrimination."  

    No, it's just plain silly to suggest that an officer can force you to place your fingers on a scanner at the police station to determine who you are and whether you have warrants,  or to compare against fingerprints found at a crime scene, and they can make you pose for a photograph to run against databases to tell if you're wanted, to show witnesses to a crime, etc., and that they can take the keys from your pocket that unlock the car where the body is in the trunk,  but that it would be a 5th Amendment violation to hold a phone up to your face or put your finger on the scanner.


    FileMakerFeller
  • Reply 13 of 50
    lkrupp said:
    I understand the principle of limiting the government’s ability to compel one to open their phones for inspection. I also agree with the 5th Amendment prohibition against self incrimination. But freedom is not free. Enforcing these prohibitions means we as a society have to accept the fact that crime will continue to rise and victims will continue to be robbed and murdered. I live near St. Louis which made the national news this week because 13 children have been gunned down in the streets this month alone. Protests are being organized demanding the police department DO SOMETHING. But these same protesters don’t want surveillance cameras in their neighborhood, are scared to report anything to the police. They want gun control as if that would change anything and the 2nd Amendment is blocking those efforts.

    I’m sure the very people posting here about the 5th Amendment and unlocking phones are probably just fine with legislation outlawing guns in the hands of the public and want the 2nd Amendment repealed. Again, freedom is not free and we need to accept the price of that freedom.

    An incident in my on town some twenty years ago still sticks in people’s craws. A woman murdered her boyfriend, cut him up into pieces and stuffed him into a garbage can. She was in an upstairs apartment. She rented a Rug Doctor from a local store in an attempt to clean up the blood. The downstairs apartment occupant noticed a red liquid running down her wall and called police. They knocked on the upstairs apartment and the woman let them in. One of the officers saw the garbage can and lifted the lid to find the dismembered body. The case was dismissed because the officer didn’t have a search warrant to open that lid and the garbage can and dismembered body were ruled inadmissible evidence. Blame the cop if you want but the woman got away scot free with murder. Tell the family of the victim it’s the price of freedom and too bad for you.
    No need to throw out our Constitutional protections to have public safety.  The 5th Amendment has a very important protection that against the government forcing you to testify against yourself. It arose out of our English common law history where people could be tortured to force them to testify.   It has nothing to do with you providing fingerprints, your photograph, your DNA, etc., or the silly ruling from this judge that will be easily overturned if appealed.  
    FileMakerFeller
  • Reply 14 of 50
    spice-boyspice-boy Posts: 1,430member
    86hawkeye said:
    On one hand I can see the "inherently testimonial" argument on this.

    On the other hand, how is a warrant to unlock a device via Face ID or Touch ID different than a warrant to allow police into your house to search for something?

    The police are not allowed to take blood or DNA samples from a person without a court order, biometric triggers fall under the same rule. 
    dysamorianetmageFileMakerFeller
  • Reply 15 of 50
    MplsPMplsP Posts: 2,937member
    spice-boy said:
    86hawkeye said:
    On one hand I can see the "inherently testimonial" argument on this.

    On the other hand, how is a warrant to unlock a device via Face ID or Touch ID different than a warrant to allow police into your house to search for something?

    The police are not allowed to take blood or DNA samples from a person without a court order, biometric triggers fall under the same rule. 
    Right, but assuming they have a properly issued search warrant for the device, how is it different? And they police don't need a court order to take a photo or a fingerprint.
  • Reply 16 of 50
    MplsPMplsP Posts: 2,937member

    lkrupp said:
    I understand the principle of limiting the government’s ability to compel one to open their phones for inspection. I also agree with the 5th Amendment prohibition against self incrimination. But freedom is not free. Enforcing these prohibitions means we as a society have to accept the fact that crime will continue to rise and victims will continue to be robbed and murdered. I live near St. Louis which made the national news this week because 13 children have been gunned down in the streets this month alone. Protests are being organized demanding the police department DO SOMETHING. But these same protesters don’t want surveillance cameras in their neighborhood, are scared to report anything to the police. They want gun control as if that would change anything and the 2nd Amendment is blocking those efforts.

    I’m sure the very people posting here about the 5th Amendment and unlocking phones are probably just fine with legislation outlawing guns in the hands of the public and want the 2nd Amendment repealed. Again, freedom is not free and we need to accept the price of that freedom.

    An incident in my on town some twenty years ago still sticks in people’s craws. A woman murdered her boyfriend, cut him up into pieces and stuffed him into a garbage can. She was in an upstairs apartment. She rented a Rug Doctor from a local store in an attempt to clean up the blood. The downstairs apartment occupant noticed a red liquid running down her wall and called police. They knocked on the upstairs apartment and the woman let them in. One of the officers saw the garbage can and lifted the lid to find the dismembered body. The case was dismissed because the officer didn’t have a search warrant to open that lid and the garbage can and dismembered body were ruled inadmissible evidence. Blame the cop if you want but the woman got away scot free with murder. Tell the family of the victim it’s the price of freedom and too bad for you.
    Freedom is not free, and the founding fathers as well as a multitude of court rulings have recognized that virtually nothing was absolute. Right in the constitution they stated that there were circumstances in which society's need for justice trumped an individual's right for privacy and allowed for searches. The second amendment is not absolute, either. We don't allow felons to buy guns. We require background checks (well, sort of,) etc. There is no functioning society in history that has allowed individuals to have completely unfettered 'freedom.' The other word for that is anarchy.
    dysamoriabadmonk
  • Reply 17 of 50
    spice-boyspice-boy Posts: 1,430member

    lkrupp said:
    I understand the principle of limiting the government’s ability to compel one to open their phones for inspection. I also agree with the 5th Amendment prohibition against self incrimination. But freedom is not free. Enforcing these prohibitions means we as a society have to accept the fact that crime will continue to rise and victims will continue to be robbed and murdered. I live near St. Louis which made the national news this week because 13 children have been gunned down in the streets this month alone. Protests are being organized demanding the police department DO SOMETHING. But these same protesters don’t want surveillance cameras in their neighborhood, are scared to report anything to the police. They want gun control as if that would change anything and the 2nd Amendment is blocking those efforts.

    I’m sure the very people posting here about the 5th Amendment and unlocking phones are probably just fine with legislation outlawing guns in the hands of the public and want the 2nd Amendment repealed. Again, freedom is not free and we need to accept the price of that freedom.

    An incident in my on town some twenty years ago still sticks in people’s craws. A woman murdered her boyfriend, cut him up into pieces and stuffed him into a garbage can. She was in an upstairs apartment. She rented a Rug Doctor from a local store in an attempt to clean up the blood. The downstairs apartment occupant noticed a red liquid running down her wall and called police. They knocked on the upstairs apartment and the woman let them in. One of the officers saw the garbage can and lifted the lid to find the dismembered body. The case was dismissed because the officer didn’t have a search warrant to open that lid and the garbage can and dismembered body were ruled inadmissible evidence. Blame the cop if you want but the woman got away scot free with murder. Tell the family of the victim it’s the price of freedom and too bad for you.
    You have over simplified a very complex problem and of course are blaming the victims. Control does not mean taking guns away from everyone but making sure those who wish to purchase a gun have background checks and in my opinion other screening techniques before putting a deadly weapon in their hands. Your criticism of people not calling what they perceive as a not "friendly" city agency, the police department, at fault shows how little you understand about their lives. There was a time when cities with high crime rates and deaths related to guns violence were isolated in cities with high levels of poverty. That has changed since the 1970's and 1980's, today gun violence happens everywhere, rich suburbs, schools, movies theaters and just about anywhere. Years ago you knew not to enter a "dangerous neighborhood", today anywhere could be that dangerous neighborhood. As deaths from gun violence increase so do the consumption of fire arms. More guns do not solve the problem, there is no way to argue it would. 
    I lived in the most dangerous neighborhood in New York City during the early 1980's, my apartment was one floor above a drug dealer who had a guard outside his apartment with a sawed off shotgun. My apartment was robbed twice one time while I was sleeping, I never thought once of getting a gun before after those events. I guess only cowards need guns. 
    edited August 2019 dysamoria
  • Reply 18 of 50
    This needs to be answered by the Supreme Court, these individual judge rulings don’t mean squat...
  • Reply 19 of 50
    GulaakGulaak Posts: 12unconfirmed, member
    spice-boy said:

    lkrupp said:
    I understand the principle of limiting the government’s ability to compel one to open their phones for inspection. I also agree with the 5th Amendment prohibition against self incrimination. But freedom is not free. Enforcing these prohibitions means we as a society have to accept the fact that crime will continue to rise and victims will continue to be robbed and murdered. I live near St. Louis which made the national news this week because 13 children have been gunned down in the streets this month alone. Protests are being organized demanding the police department DO SOMETHING. But these same protesters don’t want surveillance cameras in their neighborhood, are scared to report anything to the police. They want gun control as if that would change anything and the 2nd Amendment is blocking those efforts.

    I’m sure the very people posting here about the 5th Amendment and unlocking phones are probably just fine with legislation outlawing guns in the hands of the public and want the 2nd Amendment repealed. Again, freedom is not free and we need to accept the price of that freedom.

    An incident in my on town some twenty years ago still sticks in people’s craws. A woman murdered her boyfriend, cut him up into pieces and stuffed him into a garbage can. She was in an upstairs apartment. She rented a Rug Doctor from a local store in an attempt to clean up the blood. The downstairs apartment occupant noticed a red liquid running down her wall and called police. They knocked on the upstairs apartment and the woman let them in. One of the officers saw the garbage can and lifted the lid to find the dismembered body. The case was dismissed because the officer didn’t have a search warrant to open that lid and the garbage can and dismembered body were ruled inadmissible evidence. Blame the cop if you want but the woman got away scot free with murder. Tell the family of the victim it’s the price of freedom and too bad for you.
    You have over simplified a very complex problem and of course are blaming the victims. Control does not mean taking guns away from everyone but making sure those who wish to purchase a gun have background checks and in my opinion other screening techniques before putting a deadly weapon in their hands. Your criticism of people not calling what they perceive as a not "friendly" city agency, the police department, at fault shows how little you understand about their lives. There was a time when cities with high crime rates and deaths related to guns violence were isolated in cities with high levels of poverty. That has changed since the 1970's and 1980's, today gun violence happens everywhere, rich suburbs, schools, movies theaters and just about anywhere. Years ago you knew not to enter a "dangerous neighborhood", today anywhere could be that dangerous neighborhood. As deaths from gun violence increase so do the consumption of fire arms. More guns do not solve the problem, there is no way to argue it would. 
    I lived in the most dangerous neighborhood in New York City during the early 1980's, my apartment was one floor above a drug dealer who had a guard outside his apartment with a sawed off shotgun. My apartment was robbed twice one time while I was sleeping, I never thought once of getting a gun before after those events. I guess only cowards need guns. 
    Cool. I'm OK with being a coward. And I'm OK with you not being a coward. So stop trying to take away my ability to be a coward.
    macseekerzeus423shreknetmage
  • Reply 20 of 50
    cpsrocpsro Posts: 2,786member
    lkrupp said:
    They want gun control as if that would change anything and the 2nd Amendment is blocking those efforts.
    The 2nd Amendment supports gun control--gun control far beyond what we have in the U.S.A. Its text is but one sentence in length:
    "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
    That was written roughly 150 years before assault rifles and high capacity magazines appeared.

    Gun control would change a lot, as evidenced by every other developed country that doesn't have the problems we do. (Of course the extensive racism in the U.S.A. doesn't help either). But 60% of gun-related deaths in the U.S.A. were suicides, with the vast majority white males.

    Don't let the NRA or right-wing talk radio pervert the meaning of the 2nd Amendment.
    edited August 2019 MplsPdysamoriaPickUrPoisonchasmbadmonkspice-boyFileMakerFellerMisterKit
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