Court Has No Problem With All House Residents Being Forced To Hand Over Fingers To Law Enforcement

from the fifth-amendment-five-finger-discount dept

A ruling has been handed down by a federal judge finding the government's demands for fingerprints from multiple residents of a house does not implicate the Fifth Amendment. [h/t Brad Heath]

The underlying case -- still under seal -- bears some resemblance to one we discussed here about a year ago. Law enforcement sought a search warrant for a residence, which would allegedly house devices containing child pornography. The devices were suspected to be Apple products, which can be opened with fingerprints. The warrant asked for permission to compel the residents to supply their fingerprints -- both to unlock the devices and to ascribe possession to the person whose fingerprint unlocked them.

Surprisingly, the magistrate judge rejected the government's request. The government appealed the magistrate's rejection, kicking it up a level in the federal court system. The court notes in its ruling [PDF] its reviews of magistrates' decisions isn't normally adversarial, but this case raises some questions in need of additional viewpoints.

Ordinarily, review of the magistrate judge’s decision on a warrant application would be ex parte. But because the magistrate judge’s thoughtful opinion addressed a novel question on the scope of the Fifth Amendment’s privilege against self-incrimination, the Court invited the Federal Defender Program in this District to file an amicus brief to defend the decision (the government did not object to the amicus participation). The Court is grateful for the Federal Defender Program’s excellent service in fulfilling this request.

The decision here comes down on the side of the government, decisively so. But that may be due to the specifics of the fingerprint application. Rather than directly asking the residents of the searched home to use Apple's TouchID to unlock the devices (which would require a specific finger known only to each resident), law enforcement officers will choose which finger each suspect must apply to the device.

Specifically, the constitutional text on which the right is premised only prevents the government from compelling a person from being a “witness” against himself. U.S. Const., amend. V. The Fifth Amendment provides, in pertinent part: “No person … shall be compelled in any criminal case to be a witness against himself.” Witnesses provide testimony, so that specifically is the forbidden compulsion: the government cannot force someone to provide a communication that is “testimonial” in character…

The same holds true for the fingerprint seizure sought by the government here. As noted earlier, and worth emphasizing again, the government agents will pick the fingers to be pressed on the Touch ID sensor, Affidavit ¶ 39 n.9, ¶ 41, so there is no need to engage the thought process of any of the residents at all in effectuating the seizure. The application of the fingerprint to the sensor is simply the seizure of a physical characteristic, and the fingerprint by itself does not communicate anything.

The court likely would have reached the same conclusion even if the government had demanded residents choose fingers themselves. (The court does not state -- nor is it reflected anywhere in the court's discussion -- that law enforcement is limited to one finger from each resident. To keep this from becoming a mockery of the court's intent, you would think this would be the case. Nothing on the record indicates, however, that the government gets one finger per person.)

What's depicted here clearly falls in line with previous decisions related to the Fifth Amendment implications of providing fingerprints to unlock devices. Physical properties like fingerprints haven't been considered testimonial because they're apparent, visible, and clearly linked to the individual under suspicion. Handing over a fingerprint requires no "testimonial" effort, courts have decided, even if the non-testimonial action produces a wealth of incriminating evidence.

The compelled production of passwords and PINs is still an open issue. How open is a matter of (judicial) opinion. So far, refusing the government's offer to provide the keys to possibly incriminating evidence has only conclusively proven to be a good way to spend an indefinite amount of time in jail. But it at least provides the slimmest hope a judge will find demands for passwords a violation of the Fifth Amendment. The case for fingerprints being testimonial hasn't found much sympathy in the courts, despite the application of fingerprints ultimately being every bit as revealing as typing in a password.


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  • icon
    Narcissus (profile), 23 Oct 2017 @ 3:50am

    I agree with the court in this one, unless you want to exclude fingerprinting from all evidence.

    When you're arrested you have to give your fingerprints and that could lead to your conviction if your fingerprints match prints found on something connected to the case. So that's tantamount to incriminating yourself as well. It seems though that everybody is fine with that.

    Although it's still complicated because in this case it seems they went on a fishing expedition and compelled everybody in the general vicinity to be fingerprinted. That is a dangerous path in my view. Now it was "limited" to all residents of the residence. What is to say they can't "limit" it to all residents of a certain neighborhood, city, state, country?

    reply to this | link to this | view in chronology ]

    • icon
      Jeremy Lyman (profile), 23 Oct 2017 @ 4:21am

      Re:

      I agree about taking fingerprints upon arrest, but if they haven't accessed the devices, they haven't found the evidence needed for an arrest, right? It gets into a circular bit of logic where we suspend your rights so we can attain evidence needed to suspend your rights. That onus is supposed to fall on the cops to first have enough proof.

      reply to this | link to this | view in chronology ]

  • identicon
    SirWired, 23 Oct 2017 @ 3:53am

    This is a reasonable exception

    I agree with the court's conclusion that the fingerprint is not testimonial; I don't think passwords are testimonial either, but it's certainly problematic if the government can lock you up indefinitely if you are actually incapable of providing the correct password (because you forgot or the device isn't actually yours.)

    That's not a problem with fingerprints; if your fingerprint doesn't work, it doesn't work.

    Note to self: Use a knuckle or something...

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 23 Oct 2017 @ 4:15am

      The difference between freedom and jail

      I don't think passwords are testimonial either, but it's certainly problematic if the government can lock you up indefinitely if you are actually incapable of providing the correct password (because you forgot or the device isn't actually yours.)

      Passwords are testimonial in that they require someone to provide personal knowledge, knowledge which can then be used to legally establish a link between them and any content/information that the password was protecting.

      It's the difference between 'The police are pretty sure that the phone/device is owned by the suspect and contains incriminating evidence" and 'The police know that the suspect had access to the device, and have the incriminating evidence to use against them'.

      Anything that can be the difference between a guilty conviction and a ruling of not guilty is worth significant scrutiny, such that the legal protections against self-incrimination should be upheld.

      As for the second half I'd argue that it would be just as bad even if the device was owned by the suspect and they did know the password to unlock it, as they are still being punished for refusing to provide self-incriminating evidence against them, in clear violation of the prohibition against that.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Oct 2017 @ 4:52am

        Re: The difference between freedom and jail

        It's the difference between 'The police are pretty sure that the phone/device is owned by the suspect and contains incriminating evidence" and 'The police know that the suspect had access to the device, and have the incriminating evidence to use against them'.

        In this case they don't even know who the suspect is, and are on a fishing expedition. Similar in principle to if wifi was involved and the police decided to search every house in the neighborhood because they didn't know which one was involved.

        reply to this | link to this | view in chronology ]

        • icon
          BostonPilot (profile), 23 Oct 2017 @ 5:40am

          Re: Re: The difference between freedom and jail

          Thank you, I was wondering why this wasn't addressed in the article. It DOES seem like a fishing expedition.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 24 Oct 2017 @ 3:24am

          Re: Re: The difference between freedom and jail

          What's to stop them with this precedent from going into EVERY HOUSE IN AMERICA?

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Oct 2017 @ 8:55am

      Re: This is a reasonable exception

      That's not a problem with fingerprints; if your fingerprint doesn't work, it doesn't work.

      Do the police have any privacy obligations here? If they make people put their fingers on a device they found, how do they know the device won't transmit them somewhere? Or store them so that the owner will get everyone's fingerprints, if they ever get the device back.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2017 @ 4:04am

    Typo note

    In the headline: finger -> fingerprints

    reply to this | link to this | view in chronology ]

  • identicon
    RS, 23 Oct 2017 @ 4:12am

    > In the headline: finger -> fingerprints

    It just feels like they're taking fingers.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 23 Oct 2017 @ 4:16am

    "We're just going to look the other way while you do whatever, alright?

    reply to this | link to this | view in chronology ]

  • identicon
    Avideogameplayer, 23 Oct 2017 @ 4:16am

    I'm pretty sure the neighbors would love to give law enforcement a middle finger...

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 23 Oct 2017 @ 4:26am

    It's not a mockery of the intent if that was the intent all along

    (Right, let's try this again with a tab instead of an enter shall we?)

    To keep this from becoming a mockery of the court's intent, you would think this would be the case. Nothing on the record indicates, however, that the government gets one finger per person.

    The excerpt from the article directly above this would seem to make it clear that the court has no intent in limiting it to just one finger per person.

    'As noted earlier, and worth emphasizing again, the government agents will pick the fingers to be pressed on the Touch ID sensor,

    Fingers, plural. Unless that is clarified elsewhere that they only get one try per person, then it would seem there is nothing preventing all fingers from all suspects be tried.

    If the agents do exactly that it wouldn't be making a mockery of the 'intent', instead it would seem to be following right along with the blatant dodge the judge seems to have come up with to justify their decision. Can't force someone to provide the 'correct' finger as that would be testimonial? Not a problem, just force them to try all of their fingers until one works.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Oct 2017 @ 4:43am

      Re: It's not a mockery of the intent if that was the intent all along

      The limit on how many fingers that they can try per device is the number of attempts before the device wants a password or phrase to unlock it.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Oct 2017 @ 4:47am

      Re: It's not a mockery of the intent if that was the intent all along

      Ah, the old Cinderella type approach.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Oct 2017 @ 4:56am

        Re: Re: It's not a mockery of the intent if that was the intent all along

        "Yer honor, we found this here used syringe with illegal drug residue in the street so we wanna search all the houses on that street."

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 23 Oct 2017 @ 4:59am

          Re: Re: Re: It's not a mockery of the intent if that was the intent all along

          "Along with the houses of anyone who might have wandered through the area in the past... oh I dunno, month? I mean at this point we might as well go all in."

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 23 Oct 2017 @ 8:13am

            Re: Re: Re: Re: It's not a mockery of the intent if that was the intent all along

            Awww - screw it, lets just get everything from everybody

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coder, 23 Oct 2017 @ 4:53am

    Biometric information is not a valid password!

    Well, basic security rule nr 1: biometric information is not a valid password (at best it is a user identification like a username or emailaddress)!

    Rationale:
    1) If compromised, you cannot change your biometric information as you would a password.
    2) Biometric information, by it's very nature, can be collected without your consent.

    reply to this | link to this | view in chronology ]

    • identicon
      Rekrul, 23 Oct 2017 @ 8:32am

      Re: Biometric information is not a valid password!

      Additionally, if you injure that finger in a way that significantly alters your fingerprint, such as burning it, you'll no longer be able to unlock the phone.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Oct 2017 @ 8:59am

      Re: Biometric information is not a valid password!

      It could be used as two-factor authentication.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Oct 2017 @ 8:21pm

        Re: Re: Biometric information is not a valid password!

        "It could be used as two-factor authentication."

        How about two-finger authentication.

        Assuming you still have two fingers left after "Residents Being Forced To Hand Over Fingers".

        reply to this | link to this | view in chronology ]

    • identicon
      Anon, 23 Oct 2017 @ 2:26pm

      Re: Biometric information is not a valid password!

      Without spoiling it too much, there's a very good example of the (using face recognition) in *Blade Runner 2049*

      reply to this | link to this | view in chronology ]

  • icon
    MyNameHere (profile), 23 Oct 2017 @ 5:18am

    In many ways the case is very simple. Remove the "touchID" button and there wouldn't be a problem compelling everyone in the house to provide finger prints. It's actually fairly common to do when trying to do a sort of elimination to look for non-resident finger prints.

    Adding the technology doesn't change a lot. If they had intended to lock their phones in a meaningful way, they would have used a password or gesture.

    reply to this | link to this | view in chronology ]

  • icon
    tom (profile), 23 Oct 2017 @ 5:39am

    Smart phone owners need the following fingerprint app:
    One finger gives "Warning - permanent erase in 10-9..., press to abort." Not aborting just unlocks the phone.
    A different finger does the silent reset to factory specs.

    In this case, it would be the Police that erased the phone, since the owner was compelled to provide the finger and the police did the actual pressing.

    reply to this | link to this | view in chronology ]

    • icon
      MyNameHere (profile), 23 Oct 2017 @ 6:06am

      Re:

      Yeah, umm, fun.

      You are unlocking your phone. As you hit the first finger, someone jiggles your hand, you almost drop your phone, and you catch it at the last second, with another finger resting on the unlock.

      Congrats, your phone is factory fresh!

      reply to this | link to this | view in chronology ]

    • identicon
      Anon, 23 Oct 2017 @ 2:30pm

      Re:

      I thought the default Apple spec was (a) ten tries and the phone is dead and (b) after 48 hours, a code is required anyway. A good addition would be phone locks and needs code not fingerprint if it loses connection to the network for more than a few seconds... since putting a cell in a radio-wave proof bag would be a logical thing for police to do to disable remote wipe commands.

      reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 23 Oct 2017 @ 8:29am

    Like Jon Snow, I know nothing...about using fingerprints to unlock a phone. While I agree that using a fingerprint is a bad idea for the reasons stated above, what would happen if you recorded the initial print by putting your finger on the screen upside down? If you then try unlocking the phone by placing your finger on the screen rightside up, is the phone smart enough to rotate the scan to try and find a match? Or would it simple compare the normal print to the upside down one and not work? What if you did it sideways?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2017 @ 2:23pm

    All House Residents Being Forced To Hand Over Fingers

    We are all Yakuza now?

    Yubitsume, or the cutting off of one's finger, is a form of penance or apology. Upon a first offense, the transgressor must cut off the tip of his left little finger and give the severed portion to his boss.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Oct 2017 @ 8:22pm

    "All House Residents Being Forced To Hand Over Fingers"

    What?

    No more five-finger discounts?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Oct 2017 @ 8:24pm

      Re: "All House Residents Being Forced To Hand Over Fingers"

      So is this what they mean when they say "the cops fingered the culprit"?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Oct 2017 @ 8:26pm

        Re: Re: "All House Residents Being Forced To Hand Over Fingers"

        So is this what they mean when they say "the cops fingered the culprit"?

        The cops must've been well-armed...

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 23 Oct 2017 @ 8:27pm

          Re: Re: Re: "All House Residents Being Forced To Hand Over Fingers"

          "The cops must've been well-armed..."

          But even-handed...

          reply to this | link to this | view in chronology ]

    • icon
      orbitalinsertion (profile), 24 Oct 2017 @ 6:50pm

      Re: "All House Residents Being Forced To Hand Over Fingers"

      It's all hand over fist now

      reply to this | link to this | view in chronology ]


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