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.
Further, if you have a safe in your house and the police have a warrant to search your house, they can’t force you to open the safe or give them the combination.
I think a safe with a combination is the equivalent of a phone with a passcode, fingerprint or face required to open.
But they can certainly call in a locksmith to drill that safe open without the owner’s cooperation. And like cracking a safe, that’s why law enforcement is buying Israeli technology to “crack” phones and other mobile devices. I for one am grateful those technologies exist so law enforcement can carry out a legal search warrant without action from the owner of the device. This is one case where the black-hats are providing a service to the good guys.
How many cases have resulted in the saving of children from boogeymen? What sort of evidence has been found on device and not in the cloud; etc?
Nice deflection but it has nothing to do with what is or isn’t found on a locked device. With a proper search warrant issued by a judge the police can conduct a legal search without the cooperation of the individual under suspicion. Like using a battering ram to knock down a door or using a locksmith the drill open a safe, police can unlock an iPhone with technologies available to them these days thereby negating the need to ask a suspect for their cooperation and dealing with the 5th Amendment issue. I am grateful that police can investigate crimes with these tools. Thankfully the cat and mouse game between Apple and authorities will continue with Apple closing one hole and the hackers promptly finding a new one.
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.
We also have the 4th amendment, which protects a person’s papers, and its not a hard stretch to consider a person’s electronic record as their “papers”.
And that 4th Amendment speaks of “unreasonable search and seizure” NOT that your papers can never be searched or seized. So your “papers” are not immune from search or seizure under the 4th Amendment. By your logic fingerprints and DNA could be considered off limits to the authorities too.
I think many missed the point on this case, what appears to have happen is law enforcement have now over played their hand yet again. Police are now claiming they need access to the device i.e. They do not have a case without having the information on the device. Thus law enforcement wants the person to self incriminate. They judge is now saying that of law enforcement needs the information on the device they do not have much of a case.
Where do you get that from? If the police are conducting an investigation and have sufficient evidence to obtain a search warrant then the are by definition building their case. If they don't have probable cause to get a warrant, they are not allowed to go on 'fishing expiditions,' whether it's on an iPhone or in someone's desk.
To my understanding, the courts have been clear that a person cannot be compelled to give out a password, lock combination, etc. The question at hand is whether this is the same as biometrics for unlocking devices.
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?
At a technical level, a warrant allows the police to break laws. It can't compel you to produce a key to a house, as you may not have the key. Instead, it effectively allows the police to burgle the house, gaining entry by whatever means necessary, and removing the items mentioned in the warrant. Now, if you do have the key, it may be wise to give it to them, as the "whatever means necessary" they pick may be breaking down the door.
In the US, actions are legally considered a form of speech (as an example, saluting the flag). Compelled actions amount to compelled speech, which is a violation of the first amendment (West Virginia State Board of Education v. Barnette). Compelling speech with the goal of gathering incriminating evidence is an explicit violation of the fifth amendment. This is a remarkably compelling argument.
This judge is saying the police can't compel a user to present their authentic body parts to the biometric authentication systems. The police are still allowed to attempt to crack a device's passcode. They are allowed to collect measurements of a suspect's body (for example, fingerprints, a mugshot, or even a 3D map of the face). They are also allowed to use those measurements to attempt to fake their way through the biometric authentication.
I think many missed the point on this case, what appears to have happen is law enforcement have now over played their hand yet again. Police are now claiming they need access to the device i.e. They do not have a case without having the information on the device. Thus law enforcement wants the person to self incriminate. They judge is now saying that of law enforcement needs the information on the device they do not have much of a case.
Where do you get that from? If the police are conducting an investigation and have sufficient evidence to obtain a search warrant then the are by definition building their case. If they don't have probable cause to get a warrant, they are not allowed to go on 'fishing expiditions,' whether it's on an iPhone or in someone's desk.
To my understanding, the courts have been clear that a person cannot be compelled to give out a password, lock combination, etc. The question at hand is whether this is the same as biometrics for unlocking devices.
This is not a case of the police having other evidence against the person and they are now asking to see the information on the phone to strengthen their case.
As an example, you can sit in your house on your computer and break all kinds of laws and the police tracked all the illegal activity back to your home by means of the "unique identifier" of the IP and Mac address of the computer in your house. They know and have other evidence to show the data is on the specific computer of interest and request a search warrant to get hold of the data.
In this case it sounds like the Police believe the person broke some law and they need the data on the phone to make their case. They can not get the person to talk and self incriminate so they want the phone data to incriminate. There is plenty of cases where the police claim to have probable cause only to have everything thrown out after their probable cause statement not to be factual or based on in evidence. The judge is saying the police are not doing their job and figure since the phone in question has a biometric entry, they can simply make the person use their face or finger to unlock. The police believe the person is not violated their rights not to speak or self incriminate, plus the police can ask get a warrant to force the unlocking. The judge is claiming the police are using the warranty and court system to get at information they would not have otherwise gotten hold of to make their case.
There is precedence to have people unlock a phone using their finger, it has been upheld many times. This case has other issues related to it thus the reason the Judge is saying the police can not have access to the phone data unless they can show independently the information they seek is on that phone.
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.
We also have the 4th amendment, which protects a person’s papers, and its not a hard stretch to consider a person’s electronic record as their “papers”.
Then explain how we see news reports of the FBI “raiding” a company’s headquarters and seizing all computers, hard drives, filling cabinets, and “papers”. Are you saying the 4th Amendment prohibits that?
Comments
To my understanding, the courts have been clear that a person cannot be compelled to give out a password, lock combination, etc. The question at hand is whether this is the same as biometrics for unlocking devices.
In the US, actions are legally considered a form of speech (as an example, saluting the flag). Compelled actions amount to compelled speech, which is a violation of the first amendment (West Virginia State Board of Education v. Barnette). Compelling speech with the goal of gathering incriminating evidence is an explicit violation of the fifth amendment. This is a remarkably compelling argument.
This judge is saying the police can't compel a user to present their authentic body parts to the biometric authentication systems. The police are still allowed to attempt to crack a device's passcode. They are allowed to collect measurements of a suspect's body (for example, fingerprints, a mugshot, or even a 3D map of the face). They are also allowed to use those measurements to attempt to fake their way through the biometric authentication.
As an example, you can sit in your house on your computer and break all kinds of laws and the police tracked all the illegal activity back to your home by means of the "unique identifier" of the IP and Mac address of the computer in your house. They know and have other evidence to show the data is on the specific computer of interest and request a search warrant to get hold of the data.
In this case it sounds like the Police believe the person broke some law and they need the data on the phone to make their case. They can not get the person to talk and self incriminate so they want the phone data to incriminate. There is plenty of cases where the police claim to have probable cause only to have everything thrown out after their probable cause statement not to be factual or based on in evidence. The judge is saying the police are not doing their job and figure since the phone in question has a biometric entry, they can simply make the person use their face or finger to unlock. The police believe the person is not violated their rights not to speak or self incriminate, plus the police can ask get a warrant to force the unlocking. The judge is claiming the police are using the warranty and court system to get at information they would not have otherwise gotten hold of to make their case.
There is precedence to have people unlock a phone using their finger, it has been upheld many times. This case has other issues related to it thus the reason the Judge is saying the police can not have access to the phone data unless they can show independently the information they seek is on that phone.