Judge rules against forcing suspects to unlock phones with Touch ID or Face ID
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
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.
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.
Comments
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.
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.
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.
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.
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.
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, 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.
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.
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.
"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.
This coward enjoys the irony.
Lots of great information here from the Electronic Frontier Foundation (EFF):
https://www.eff.org/issues/know-your-rights