Face ID, Touch ID unlocks can't be compelled by law enforcement, rules federal judge

Posted:
in iPhone edited January 14
The police cannot force a person to unlock their iPhone with Face ID or Touch ID, a U.S. federal judge has ruled, a move that effectively provides users the same protection for the biometric security for their devices as previously afforded to passcodes.

Face ID


In the United States, a suspect's property has the potential to be searched by law enforcement officials as part of an investigation, but some items are typically left alone. While people are protected from having to unlock their devices via a passcode, biometric security has been considered fair game for use by investigators, bypassing the passcode rules.

A January 10 filing in the United States District Court for the Northern District of California applying for a search warrant for a residence in Oakland reveals investigators wanted to look into the affairs of suspects in an alleged blackmail attempt, where they were claimed to have threatened to "distribute an embarrassing video" of the victim unless a payment was made.

As part of the warrant request, there was also a request to compel individuals present in the search to use a fingerprint reader, facial recognition, or iris recognition to unlock devices found on the property. In the filing, the court denies the request, as it "runs afoul of the Fourth and Fifth Amendments," specifically in relation to unlocking devices.

Judge Kanis Westmore deemed the request was too "overbroad" due to not being limited to any particular computers or devices owned by an individual or multiple persons. More importantly, Westmore declared the government and its agents were not allowed to use biometrics to force an unlock of a device, due to the potential for self incrimination.

The problem is that, while a user can state a passcode as a "testimonial communication," biometrics do not count in the same way, as they can easily be acquired via unwilling means. For example, it would be feasible for Touch ID to be triggered by forcibly holding a finger to the Home button for reading, or for Face ID to be defeated by the suspect being forced to look in the TrueDepth camera's direction for a moment.

"If a person cannot be compelled to provide a passcode because it is testimonial communication, a person cannot be compelled to provide one's finger, thumb, iris, face, or other biometric feature to unlock that same device," wrote Westmore. "The undersigned finds that 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."

While this does effectively block one avenue of evidence collection for the law enforcement agents, it doesn't completely stop the investigation from going down that route. The ruling could be overturned in the future, a second narrower warrant could be requested, or the government could make a request for the data from Facebook itself.

Since the introduction of biometric security to iPhones and other smartphones, there have been reports of law enforcement agencies taking advantage of the technology to gain access to mobile devices, with the courts permitting their use in warrants.

In 2016, a woman was compelled to use her fingerprint to unlock an iPhone confiscated from a property owned by an Armenian Power gang member, one who at the time was in prison for unrelated charges. There have also been multiple instances where members of law enforcement have used fingers of corpses to attempt to access iPhones and obtain evidence, though with little success due to the amount of time that had passed since the last successful unlock.

Such actions are not limited to fingerprints. In August 2018, the FBI ordered the unlocking of an iPhone X using Face ID as part of a child abuse investigation in Columbus, Ohio. A forensic firm has also warned police to avoid looking at the screen of an iPhone X or other Face ID-secured device, or else potentially lose the ability to attempt a face-based unlock in the future.

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Comments

  • Reply 1 of 34
    gatorguygatorguy Posts: 20,894member
    That's an excellent outcome. Hopefully it will stand after all the appeals are exhausted. 
    hodarmuthuk_vanalingamolssteven n.longpathrcfagutengelbaconstang
  • Reply 2 of 34
    Nice. Hopefully this this ruling has reach and touches other jurisdictions.
    edited January 14 rcfagutengelwatto_cobra
  • Reply 3 of 34
    Mike WuertheleMike Wuerthele Posts: 4,754administrator
    Nice. Hopefully this this ruling has reach and touches other jurisdictions.
    It should. Federal court.
    longpathgutengelwatto_cobra
  • Reply 4 of 34
    MplsPMplsP Posts: 1,546member
    I thought there was a ruling a while back saying people could be compelled to unlock a device with FaceID?

    As a practical matter, faceID expires and requires a passcode after a set time limit, so the police act quickly your phone would require a passcode anyway. I can't say I agree with Gatorguy. I want privacy and I don't want the NSA snooping on everything I do, but as I've said before, the 4th amendment prevents "unreasonable search and seizure." It is not absolute, nor is the right to privacy. If law enforcement has adequate grounds for doing so, I see nothing wrong with compelling the use of FaceID to unlock a device.


    watto_cobra
  • Reply 5 of 34
    MplsP said:
    I thought there was a ruling a while back saying people could be compelled to unlock a device with FaceID?
    That's why there are higher courts.

    A ruling at one level can be over-ruled by the next higher until it gets to the Supreme Court, who has the final say (until something is legislated and it potentially starts over).
    watto_cobra
  • Reply 6 of 34
    gatorguy said:
    That's an excellent outcome. Hopefully it will stand after all the appeals are exhausted. 
    Nice. Hopefully this this ruling has reach and touches other jurisdictions.
    You guys got something to hide?
  • Reply 7 of 34
    lennlenn Posts: 36member
    This is laughable. Law enforcement can get a warrant to enter your house and search every single inch of it but they aren't allowed to search a stupid phone????? That makes no sense at all.
  • Reply 8 of 34
    gatorguygatorguy Posts: 20,894member
    MplsP said:
    I thought there was a ruling a while back saying people could be compelled to unlock a device with FaceID?

    As a practical matter, faceID expires and requires a passcode after a set time limit, so the police act quickly your phone would require a passcode anyway. I can't say I agree with Gatorguy. I want privacy and I don't want the NSA snooping on everything I do, but as I've said before, the 4th amendment prevents "unreasonable search and seizure." It is not absolute, nor is the right to privacy. If law enforcement has adequate grounds for doing so, I see nothing wrong with compelling the use of FaceID to unlock a device.


    I don't entirely disagree, but this ruling had more to do with a too-broad warrant. I don't think police, government, or especially private parties in a civil disagreement should be able to rifle thru any and all devices covering an extensive time period to look for evidence of wrong-doing. Had the police asked for a specific time and on a specific device and had good supporting reasons for that particular search they may have passed the court's consideration of it. That's not what this one was about.

    IMO it's not entirely unlike asking for the location records of every smartphone, laptop, or other mobile device over a 24-hour period in a 2 mile radius of a major crime scene in order to find potential suspects, and then searching a couple dozen devices that might match. Way too broad and intrusive. No one should be compelled to turn over their personal devices and ready them for inspection for such a search. There's a difference between "might" and "probable", and the courts are narrowing that re: our smartphones. 

    Regarding biometrics specifically: If the warrant specifies the detailed reasoning for a particular targeted search I'm not at all saying that a suspect shouldn't ever be compelled to open their device(s) if secured purely by biometrics like fingerprint or face ID as long as a judge has reviewed it and agrees. i suspect another court may see this differently and SCOTUS, if it were to go that far, would narrow the decision regarding biometrics and device encryption. 
    edited January 14 baconstangmuthuk_vanalingambeowulfschmidt
  • Reply 9 of 34
    linkmanlinkman Posts: 923member
    "If a person cannot be compelled to provide a passcode because it is testimonial communication, a person cannot be compelled to provide one's finger, thumb, iris, face, or other biometric feature to unlock that same device," wrote Westmore.
    I'm seeing very little difference between this and being forced to supply your fingerprints -- imprints of which are taken in almost every circumstance of someone being arrested.
  • Reply 10 of 34
    hentaiboy said:
    gatorguy said:
    That's an excellent outcome. Hopefully it will stand after all the appeals are exhausted. 
    Nice. Hopefully this this ruling has reach and touches other jurisdictions.
    You guys got something to hide?
    Groan, there's always one. No, son, but I do live in a city where there are corrupt law enforcement officers who aren't above fishing and faking evidence. So do you. Tho in my case there were highly publicized federal cases against said officers and some justice was obtained.  
    edited January 14 GeorgeBMacfastasleepbaconstang2old4funmacxpressbeowulfschmidtwatto_cobra
  • Reply 11 of 34

    lenn said:
    This is laughable. Law enforcement can get a warrant to enter your house and search every single inch of it but they aren't allowed to search a stupid phone????? That makes no sense at all.
    Not really accurate -- a search warrant is limited to the type of evidence being sought after. For instance if they're looking for banking papers they can't go through your medicine cabinet and throw substance abuse charges at you. Etc. 

    We do have rights that protect us from our government in this country. Crazy, huh?
    gutengelbaconstangwatto_cobra
  • Reply 12 of 34
    I fear we will ultimately lose this legal fight. And by we I mean those of us who would agree with this decision and those of us who would like to see more respect for the individual rights which our Constitution was meant to protect.

    We've already seen decisions from other federal courts which run substantively contrary to the noteworthy finding of this decision. We'll probably see conflicting decisions for a while, to include conflicting precedents from different federal circuits. But eventually the Supreme Court will likely have to decide the core issue and, at this point, I'd lay odds against the Supreme Court's decision being consistent with the one in this case.

    That said, as I see it part of the problem is a fundamental mischaracterization of what encryption is. Even in this case, which I'd say reached the correct result, that fundamental mischaracterization is evinced and complicates the reasoning unnecessarily. Encryption isn't analogous to, in the physical world, locking a safe or filing cabinet or building. Decryption isn't analogous to unlocking such things. Encryption is an alteration of data - it means destroying what might otherwise exist and replacing it with something meaningfully incomprehensible. Decryption means recreating something which had, before the decryption, no longer existed.

    When someone is forced to decrypt something - whether it be via biometrics or entering a passcode - they aren't unlocking something such that the government might have access to it. The government already (with a minimal amount of effort) has access to whatever actually exists. Instead, when someone is forced to decrypt something they are facilitating the recreation of something which the government thinks might be more useful than that which currently exists. It's more like forcing a suspect to recreate evidence which they had previously destroyed than it is like forcing a suspect to turn over or unlock evidence which they still have possession of. The forgone conclusion doctrine shouldn't even matter because we aren't talking about an act of production (as that term is used in this context - meaning, to turn over rather than to create), we're talking about an act of recreation. 
  • Reply 13 of 34
    jcs2305jcs2305 Posts: 785member
    lenn said:
    This is laughable. Law enforcement can get a warrant to enter your house and search every single inch of it but they aren't allowed to search a stupid phone????? That makes no sense at all.
    The police cannot force a person to unlock their iPhone with Face ID or Touch ID, a U.S. federal judge has ruled,

    Forcing a person to open the phone on the spot isn't the same as having a warrant to search a phone.

    gutengelfastasleepwatto_cobra
  • Reply 14 of 34
    Nice. Hopefully this this ruling has reach and touches other jurisdictions.
    It should. Federal court.
    To be clear, a federal district court decision like this might be found by another court to be persuasive. But federal district court decisions aren't precedential other than, perhaps, in the same district. There's been debate on that last point. But, for the most part, federal district court decisions only bind the parties involved - and even for them, that's unless and until a higher court rules differently.
  • Reply 15 of 34
    jcs2305jcs2305 Posts: 785member
    hentaiboy said:
    gatorguy said:
    That's an excellent outcome. Hopefully it will stand after all the appeals are exhausted. 
    Nice. Hopefully this this ruling has reach and touches other jurisdictions.
    You guys got something to hide?
    Wanting law enforcement to have the legal ok to open private property means there is something to hide?  Have a warrant and there is no reason to not comply. Forcing someone by any means on the spot to open a phone is not ok in my book.  An officer can get a warrant almost instantly with technology today if it is necessary.

    I think you are mixed up.. Law enforcement are to protect and serve we the people. We aren't their subordinates to do their bidding when told. Respect them yes, let them do whatever they want.. no way!


    gutengelauxiobaconstangStrangeDayswatto_cobra
  • Reply 16 of 34
    lenn said:
    This is laughable. Law enforcement can get a warrant to enter your house and search every single inch of it but they aren't allowed to search a stupid phone????? That makes no sense at all.
    I don't know about you but my phone has access to an awful lot of data that isn't necessarily "on it" and may not necessarily belong to me.  So allowing access to the phone is similar to a warrant that says they can search every inch of your home, work, friends houses, businesses you've been to lately, bank, neighborhood bar, etc.

    Remember that your phone potentially contains records of where you've been (and when), medical records, work, childcare information, etc.  My phone also contains information to access my child's and parent's medical records, many of their accounts, etc.  There is FAR more information about me, and the people around me, accessible from my phone than you'll ever find in my home.
    gutengelbaconstang
  • Reply 17 of 34
    jcs2305 said:
    hentaiboy said:
    gatorguy said:
    That's an excellent outcome. Hopefully it will stand after all the appeals are exhausted. 
    Nice. Hopefully this this ruling has reach and touches other jurisdictions.
    You guys got something to hide?
    Wanting law enforcement to have the legal ok to open private property means there is something to hide?  Have a warrant and there is no reason to not comply. Forcing someone by any means on the spot to open a phone is not ok in my book.  An officer can get a warrant almost instantly with technology today if it is necessary.

    I think you are mixed up.. Law enforcement are to protect and serve we the people. We aren't their subordinates to do their bidding when told. Respect them yes, let them do whatever they want.. no way!


    One of the points of this decision is that the government generally can't get a warrant to compel someone to use biometrics to decrypt a digital device even if it might be able to get (or otherwise have) a warrant to seize or search the device. The issue here isn't that the government is trying to compel biometric decryption without a warrant.
    gutengel
  • Reply 18 of 34
    rcfarcfa Posts: 775member
    lenn said:
    This is laughable. Law enforcement can get a warrant to enter your house and search every single inch of it but they aren't allowed to search a stupid phone????? That makes no sense at all.
    Modern electronics are like brain extensions, a forced unlock is like interrogations utilizing a “truth serum”.

    It’s incumbent on law enforcement to collect evidence, nor take a shortcut by forcing people to self-incriminate.
    gutengelbaconstangStrangeDays
  • Reply 18 of 34
    MplsP said:
    I thought there was a ruling a while back saying people could be compelled to unlock a device with FaceID?

    As a practical matter, faceID expires and requires a passcode after a set time limit, so the police act quickly your phone would require a passcode anyway. I can't say I agree with Gatorguy. I want privacy and I don't want the NSA snooping on everything I do, but as I've said before, the 4th amendment prevents "unreasonable search and seizure." It is not absolute, nor is the right to privacy. If law enforcement has adequate grounds for doing so, I see nothing wrong with compelling the use of FaceID to unlock a device.


    You are foolishly assuming law enforcement always has good intentions, the safety of others, and truely valid reasons to force people to unlock their private assets.  I personally don’t trust the government that much. I would like to think I can protect my privacy from the prying eyes of the government. 
    gutengel
  • Reply 20 of 34
    While few, there are still some within our government whom understand the intention our Founders had when writing the Constitution, and the individual liberties it provides. 

    And to all you “what do you have to hide” people...F$&@ off. Move to China then where they have a subjective scoring system from the government based on how submissive you are. 

    “I prefer dangerous freedom over peaceful slavery.” - Thomas Jefferson
    gutengelbaconstang
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