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.

Filed Under: 4th amendment, 5th amendment, biometrics, locked phones, magistrate judge, passwords


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  • identicon
    bob, 20 May 2019 @ 1:45pm

    it's finally happening.

    Glad to see multiple courts finally starting to catch up with the changes of technology. Only took multiple decades.

    Now how long until the law is updated to reflect the changes?

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

    • icon
      Anonymous Anonymous Coward (profile), 20 May 2019 @ 3:30pm

      Re: it's finally happening.

      The law doesn't need updating. The law's used for this decision come from the foundational law of the land, the Constitution. What needs updating is the arrogant procedures use by law enforcement. As the judge mentioned, there are other investigative techniques for LEO's to determine who owned the phone.

      Now if your talking about LEO's not having enough specificity to target what and where on the cellphone for what they are looking for, that wasn't mentioned in this case. It appears that many requests to view things on cellphones are mere fishing expeditions because the cops or prosecutors don't know for sure, but are hoping for some evidence. These searches should not be allowed either. Leo's could certainly do a lot more, given their access to third party information (which I don't believe they should have without a warrant) that could lead them to the specificity mentioned above, and then they would have the necessary things to ask for a warrant for the phone.

      That still leaves the question of the 5th Amendment, and whether it is testimonial that one is being compelled to testify against themselves by unlocking the phone. Personally I think being forced to unlock your phone is testimonial. The argument against that is if the information was in a safe in your house or office, they would just get a locksmith to open it. Let them get a cyber locksmith. The government does not have a right to know everything.

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

    • identicon
      Anonymous Coward, 20 May 2019 @ 5:18pm

      Re: it's finally happening.

      Compelling cell phone pwds.. violates Fifth Amendment.

      It did not take a federal magistrate to figure that out.

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

  • icon
    That One Guy (profile), 20 May 2019 @ 3:41pm

    Simple tests

    I can think of two simple tests offhand that would make situations like this really easy for judges if they used them.

    First, 'Would forcing the defendant to do the desired action provide the prosecution/investigators evidence they do not currently have? Would this evidence be incriminating for the defendant?' If yes to both, the fifth applies and the demand is rejected as unconstitutional.

    Alternatively, the 'legal immunity' test would test whether they are trying to force the defendant to provide self-incriminating information by asking whether they would accept the defendant getting full legal immunity for anything discovered(and anything discovered later because of that) by the act they are trying to force the defendant to perform. If the answer to that is 'no' then it should be pretty damn obvious that they are in fact trying to force the defendant to provide self-incriminating evidence, and the fifth would apply.

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

  • identicon
    Anonymous Coward, 20 May 2019 @ 5:29pm

    I don't hate cops in and of themselves and especially personally, but I hate that these good people who for whatever reason, noble or honorable or otherwise joined law enforcement and are expected to guard this nation's peace are coerced to enforce bad laws written into law by unelected lawyers from a judicial branch rather than legislative branch that usurps the very heart of our nation's existence and clearly stands outside of our sacred constitution.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 20 May 2019 @ 6:03pm

    John Smith raging tears in 3, 2, 1...

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

  • identicon
    Anonymous Coward, 20 May 2019 @ 9:52pm

    I'm old school. Fingerprints are tangible, not testimonial. A password on the other hand is within the content of one's mind, and is testimonial. Therefore, someone should be able to refuse to reveal a password if it leads to incriminating evidence since no one should be compelled to testify. The analogy has been described as the difference between a key to a save, and a combination.

    The government can always grant immunity in order to compel the production of the password, because, in the absence of criminal prosecution, the 5th doesn't apply.

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

    • icon
      That One Guy (profile), 20 May 2019 @ 10:59pm

      Re:

      Fingerprints are a bit of a mess with regards to forcing people to provide them these days with the incredibly stupid choice by multiple companies to treat them as passwords rather than login names, such that unlocking a device via fingerprint scan not only provides access to it's contents but also establishes a solid link between the device's contents and the person who unlocked it. Given the effect of unlocking a device with a fingerprint scan I'd say treating it as a potential violation of the 5th isn't that unreasonable.

      The government can always grant immunity in order to compel the production of the password, because, in the absence of criminal prosecution, the 5th doesn't apply.

      That they could but don't do this nicely exposes their actual goal in demanding someone provide a password, and it is absolutely to force someone to provide self-incriminating evidence, which violates the fifth. If that wasn't the goal then immunity wouldn't be an issue and it would be the first thing to try, as it wouldn't cost them anything if they weren't trying to get incriminating evidence so it would be an easy choice.

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

  • identicon
    Anonymous Coward, 21 May 2019 @ 3:33am

    Maybe in Few years a judge will make a statement saying that just because someone is at the border that does not mean that customs agents
    should be able to demand the passwords of phones, laptops , of every traveler to canada or mexico .
    As this in in violation of the constitution,s right to privacy or unreasonable search of a persons belongings.
    it seems like in many case,s if someone does not give up the password
    the laptop or phone will be taken from them and held by customs agents for weeks .

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

  • identicon
    Anonymous Coward, 21 May 2019 @ 5:24am

    bunch of crap

    The US has pushed hard in countries worldwide to adapt invasive, intrusive, and expensive biometrics for our passports and identities, so we did as the big master wanted us. And yet their own country is refusing to abide by their own policy, something the world always comes to expect from the bully like the US

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


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