Massachusetts Judge Says ATF Can Apply A Suspect's Fingerprints To Unlock An IPhone

from the five-finger-Fifth-Amendment-discount dept

It looks like a passcode still beats a fingerprint when it comes to securing your info. Maybe not from criminals, but definitely from the government. Lisa Vaas of Naked Security reports the ATF has received permission from a federal judge to apply a suspect’s fingerprints to a phone to unlock it.

[T]he document, issued on 18 April, Massachusetts federal district judge Judith Dein gave agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) the right to press a suspect’s fingers on any iPhone found in his apartment in Cambridge that law enforcement believes that he’s used, in order to unlock the devices with iPhone Touch ID.

The warrant [PDF] authorizes ATF agents to “press the fingers (including the thumbs)” of suspect Robert Brito-Pina to the “Touch ID sensor of any Apple cellular phone” recovered during the search. Brito-Pina is suspected of buying and selling weapons — neither of which are permissible given his felon status. The ATF apparently believes evidence of this will be found on Pina’s iPhone.

There doesn’t appear to be any limit on how many fingers the ATF can use to unlock the phone. The warrant says only that officers will decide which fingers to apply. Presumably, that means all of them (including thumbs), since there’s no language limiting officers to a certain number of finger applications. The only thing preventing every finger from being applied during the search is the iPhone itself, which will require a passcode after five wrong fingerprint applications.

The phone’s nexus is established pretty thoroughly in the warrant application, which much of the sting operation using an arrestee-turned-informant being carried out via text messages. The government moved to unseal the warrant five days after applying for it, suggesting it has already executed this warrant.

The weird thing about the warrant application, which thoroughly details the sting operation and the ATF’s surveillance of the suspect, is it appears the swearing agent isn’t actually sure Pina owns an iPhone.

Given the popularity of Apple brand devices, I believe it is likely that I will find Apple brand devices such as an Apple iPhone at the Target Location.

And, despite authorizing the agents to only use Pina’s finger to unlock any recovered iPhones, the warrant still contains boilerplate stating agents may demand fingerprint applications from anyone at the searched residence.

In some cases, it may not be possible to know with certainty who is the user of a given device, such as if the device is found in a common area of a premises without any identifying information on the exterior of the device. Thus, it will likely be necessary for law enforcement to have the ability to require any occupant of the Target Location to press their finger(s) against the Touch ID sensor of the locked Apple device(s) found during the search of the Subject Premises in order to attempt to identify the device’s user(s) and unlock the device(s) via Touch ID.

This case likely won’t budge the needle on the Fifth Amendment question. At least, not yet. If Pina wants the evidence gleaned from the iPhone suppressed (assuming there is an iPhone), there may be further discussion of this crucial issue in the future. Most judicial decisions on the use of biometrics to unlock devices have sided with government, asserting that faces and fingerprints are “non-testimonial,” even if they’re the gateway to plenty of evidence that will be used against the defendant. But there have been a few judges who’ve taken contrary stances, so the issue is far from settled.

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Comments on “Massachusetts Judge Says ATF Can Apply A Suspect's Fingerprints To Unlock An IPhone”

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27 Comments
Anonymous Anonymous Coward (profile) says:

Fishing expedition, they brought the bait, but the wrong hook

If the text messages came from and ATF informant, then they already have both parts of the conversation, are they looking for other conversations?

If the Iphone belongs to someone else, why is Robert Brito-Pina being charged? If the Iphone belongs to someone else, how can they assert that Robert Brito-Pina used it?

Makes one wonder what that Federal Judge was thinking. Presumably the warrant was sufficiently detailed as to what they were looking for, but the nexus between the stated defendant and phone seems very tenuous.

Anonymous Coward says:

Wouldn’t it be nice if you could configure your phone to perform different actions in response to different fingerprints?
Right index finger: insta-brick.
Left thumb: set the volume to max and play an audio clip featuring an air raid siren and a voice screaming "Hijacking in progress! Hijacking in progress!"

Anonymous Hero says:

I am a resident of The People’s Republic of Cambridge in Massachusetts Oblast.

I thought we were supposed to be hippy-commies. This is the reason why people jokingly refer to Cambridge, MA as The People’s Republic of Cambridge.

This ruling doesn’t sound very hippy-commie to me. I’d like to sit down and chat with this judge at one of our many artisan coffee shops or one of our organic, vegan delis.

Uriel-238 (profile) says:

Re: The People's Republic of Cambridge

China is unapologetically the People’s Republic of China

North Korea is, unsarcastically the Democratic People’s Republic of Korea or DPRK

Congo is the Democratic Republic of the Congo

East Germany when it was behind the iron curtain was the German Democratic Republic

What were you guys thinking?

Anonymous Hero says:

Re: Re: The People's Republic of Cambridge

That’s why I dubbed us hippy-commies.

We were the first city/town in MA to ban plastic bags for all retail establishments that provide a bag to a customer. They actually call it BYOB: bring your own bag.

Though I’ve never been to North Korea, my guess is that Cambridge has a different vibe than the DPRK. Do the citizens of DPRK have two Whole Foods within a mile from their homes?

I certainly did not come up with the nickname of The People’s Republic of Cambridge. I’m only responsible for the "Massachusetts Oblast" I stuck at the end for fun.

I don’t even see this ruling as a loophole or run-around the 5th Amendment. I see it as a gross violation of it.

Uriel-238 (profile) says:

Re: Re: Re: Hippy-commies

Being an old and self-identified San Franciscan. Cambridge sounds delightful. I now live two hours away in the basin and one of the things I most miss are the non-franchise cafés.

I was just noting that nations that call themselves people’s republics include the worst offenders of crimes against humanity. It was an attempt at humor.

Uriel-238 (profile) says:

General non-specific warrants

It’s disconcerting, and lowers confidence in the DoJ being actually interested in justice when they have warrants to seize all phones at a venue for any of them to be unlocked.

Phones belonging to non-suspects should have to require separate warrants.

At least that’s how I ascertain it should work according to Law and Order or Dragnet. Otherwise it looks like law enforcement is fishing for warm bodies to fill private prisons and property to loot via forfeiture.

Anonymous Coward says:

At least this action by the ATF requires a warrant. As many international travelers are now painfully aware of, border police and airport customs have been doing it without a search warrant, as we all should know the Constitution does not apply at (or near) the border. And using a passcode is hardly any better, as they can detain you or prevent you from ever getting into the country (even US citizens) essentially forever if you refuse to give up your laptop or iphone password.

nasch (profile) says:

Re: Re:

It’s no panacea, but it has improved my security. Before I had a fingerprint scanner, I didn’t have any security on my phone. In the many years I’d had a cell phone I had not once lost it or left it anywhere or had it outside my control when not at home. So entering a passcode every time I wanted to use it was just not worth the trouble. A fingerprint scanner is a very convenient way to add some level of security. And if I have time to turn the phone off, a password will be required on startup.

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