Another Federal Magistrate Says Compelled Production Of Passwords/Biometrics Violates The Fifth Amendment
from the with-bonus-Fourth-Amendment-coverage! dept
In another judicial rarity, a magistrate judge has rejected a warrant request by the federal government to compel a criminal suspect to unlock a phone found during the search of his residence. It won’t set precedent but it does present some arguments suspects will find useful when faced with orders for compelled production of passcodes or passwords.
Earlier this year, a California magistrate came to the same conclusion, finding that compelled production of fingerprints or faces to unlock phones violated the Fifth Amendment rights of the suspects targeted by the warrant. Equating biometric security features with passwords, the judge denied the warrant request, stating that if it’s a Fifth Amendment violation to compel password production, it’s a Fifth Amendment violation to force someone to apply their fingerprints to a locked device.
The device in this case is apparently secured by a swipe pattern. This would require more input from the suspect than simply applying a finger to the device. The court finds [PDF] that this act would be testimonial — covered by Fifth Amendment protections against self-implication. But it goes further, finding that attempting to violate Fifth Amendment rights causes violations of Fourth Amendment rights.
The Court denies the Government’s application for a warrant authorizing law enforcement to compel an individual to use his/her fingerprints to unlock a certain cellphone. Using the individual’s fingerprints for this purpose would constitute a search and seizure under the Fourth Amendment. For a search and seizure to be lawful under the Fourth Amendment it must be “reasonable.” A search or seizure is unlawful, and therefore unreasonable, when it violates a person’s constitutional rights. Here, compelling the use of the individual’s fingerprints violates the Fifth Amendment right against self-incrimination because the compelled unlocking of the phone with fingerprints would communicate ownership or control over the phone. Because the compelled use of the individual’s fingerprints violates the Fifth Amendment, the search and seizure would not be reasonable under the Fourth Amendment. Thus, the Fourth Amendment and the Fifth Amendment prohibit the result sought by the Government.
The locked phone was taken during a search of the residence for suspected child porn possession. The problem with the government’s warrant request is that the compelled production seeks testimonial information that can be gleaned simply by observing the suspect unlocking the device. As the court points out, this isn’t acceptable, even if it’s little more than a fingerprint being applied to phone’s lockscreen. It’s what the government doesn’t know that hurts its case.
Here, however, the Government seeks to compel the individual to use his/her fingerprint to attempt the unlocking of a cellphone seized at the residence. Indeed, the Government acknowledges that one purpose for doing so is to “search for . . . indicia of ownership.” Aff. in Supp. of App. for Search Warrant 14. Thus, the Government seeks evidence that the individual’s fingerprint unlocks the phone not simply to access its contents but also to establish the individual’s possession and control of the phone and knowledge of its contents.
The government can’t rely on the “foregone conclusion” theory since it apparently lacks enough evidence to tie the suspect to the phone found in the bathroom. Without more, the government is relying on the suspect to, in effect, testify against himself by unlocking a device the government can’t conclusively say belongs to him.
A footnote details the yawning gap between the actual evidence the government has and the “foregone conclusion” it was hoping to have applied to its warrant request.
The applicant avers that, when questioned at the residence at the time the earlier search warrant was executed, the individual told law enforcement his/her phone was in the bathroom. A phone was found in a bathroom, and the application implies that the individual was not in the bathroom when that statement was made. But three other phones were also located during the search. There is no specific information about how many bathrooms were in the residence. There is no information about whether the individual lives alone or whether anyone else lives or was in the residence at the time of the search. To be clear, none of these facts are determinative of the Court’s conclusion in this case. But they do illustrate that any connection between the individual and the phone at issue here is more tenuous than it might be under other circumstances.
Another footnote suggests that if the government had performed a little bit of due diligence prior to requesting this warrant, things might have gone another way.
There are, of course, other investigative techniques to determine who owned or possessed the phone, such as seeking to lift fingerprints from the device or interviewing witnesses who might connect a specific individual to the phone. Further, the Government has investigatory methods available to it to seek stored communications and subscriber information regarding phones known to be used by a particular person, upon a proper showing.
Finally, the court lays it all out for the government. Compulsion is the opposite of consent. If the government would like to ask the suspect to unlock the phone, it’s free to try that angle or anything listed in the footnote above. But what it can’t do — not without violating rights — is ask the court for permission to force someone to incriminate themselves by inextricably linking a suspect device to themselves.
The reach of this decision goes no further than the rejected warrant. But it does at least show some judges are paying close attention to warrant requests seeking compelled production of passwords or biometric markers. That’s good news for Americans and their rights.