Idaho Magistrate Judge Shoots Down Another Government Request For Compelled Fingerprint Production

from the on-the-Fifth,-I've-told-you-twice dept

Another small victory for Constitutional rights comes via the same federal magistrate who previously rejected another law enforcement request to compel production of fingerprints to unlock a phone.

In May, federal magistrate judge Ronald E. Bush said compelled production of fingerprints violates both the Fourth and Fifth Amendment. He declared the fingerprint application itself to be a search, one performed with the assistance of the suspect. There's the Fourth Amendment issue.

And since the government hadn't provided evidence tying the suspect to the phone, producing fingerprints would provide the government with testimonial evidence it didn't have. The government wanted to search the phone for "indica of ownership" -- something it hoped to perform after it had already compelled production of fingerprints. The government had no "foregone conclusion" to work with, so forcing a suspect to give up information only they know (namely, possibly verifying ownership by unlocking the phone) implicated his Fifth Amendment protections against being forced to testify against himself.

In this case, Judge Bush has handed down another denial [PDF]. Once again, the government wants to compel the unlocking of a device but doesn't have everything it needs. What the government does have isn't much. The evidence tying the suspect to child porn possession is mostly ephemeral: IP addresses, email addresses, and online accounts. Using this as probable cause, the government is asking to search electronics seized from a searched residence. (The government also wants to search the suspect's car, presumably in case any electronics are stashed there.)

As the court points out, the government wants to do things to a phone it hasn't shown will actually need to have this stuff done to it. It's working off an assumption and that assumption isn't enough for the judge to agree to the government's proposed rights violations.

The affidavit describes a feature of the smartphone which, according to the investigator, offers users “the ability to unlock the device via the use of a fingerprint or thumbprint.” It also describes that, in the investigator’s “training and experience, cellular telephone users often enable” such a touch identification security feature “because it is considered to be a more convenient way to unlock the device than by entering a numeric or alphanumeric passcode or password, as well as a more secure way to protect the device’s contents. This is particularly true when the user(s) of the device are engaged in criminal activities and thus have a heightened concern about securing the contents of the device.”

The affiant also states that “[t]he passcode or password that would unlock the cellular telephone device found during the search of [the individual, the vehicle, or the residence] is not known to law enforcement. Thus, it will likely be necessary for law enforcement to press [the individual’s] fingers and thumbs to the [smartphone] found during the search . . . in an attempt to unlock the device for the purpose of executing the search authorized by this warrant.” However, the affidavit does not describe a particular reason to believe that the subject cellphone has enabled a touch identification feature or would have such feature enabled if the device were seized during execution of a search warrant.

The attached footnote provides further reasons why the magistrate is rejecting this application for application of fingerprints.

Regardless of the constitutional issues, the application may also be premature and not ripe for decision. The applicant presupposes that a search will uncover and result in seizure of a specific smartphone at the time of the search but does not identify the device beyond a make and model and does not account for the possibility that a search might uncover additional or different devices.

The court reminds the government that it can no longer take phone searches as lightly as it once did. The Supreme Court's Riley decision made it clear phones are not pants pockets or suitcases or file cabinets. In many cases, they can provide access to a large portion of a person's life. When the government wants access to this wealth of information, it needs to deal with sureties and particulars, not assumptions devices will hold evidence and suspects will provide the keys for entrance. Here, the government does not have enough to demand the production of these keys.

Further, the government cannot demand someone testify against himself. While other courts are still wrestling with this question, Judge Bush's stance on this issue is crystal clear:

[S]ome actions are not within the Fifth Amendment privilege. Furnishing a blood sample, for instance, or providing a handwriting or voice exemplar, standing in a lineup, or submitting to fingerprinting for identification purposes are not testimonial communications because such actions do not require the suspect “to disclose any knowledge he might have” or to “speak his guilt.” Doe, 487 U.S. at 210–211 (citations omitted). The relevant distinction is the “extortion of information from the accused, . . . the attempt to force him to disclose the contents of his own mind.” Id. at 211 (citations omitted).

There is exactly that “extortion” of information here, however. The Government seeks to use the force of a search warrant to compel an individual to literally “open” the “privacies of [his/her] life,” Riley v. California, 573 U.S. at 403, and, by doing so, “to conced[e] the existence, possession and control, and authenticity of the documents tend[ing] to incriminate him.” In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d at 1343. The act of being forced to use one’s fingerprint to successfully open the contents of a smartphone is the equivalent of forcing a tangible oral or written statement from that individual that he or she has at least some degree of possession and control of the phone and possession, control and knowledge of its contents.

Once again, the court finds compelled fingerprint production to unlock devices "testimonial." And if it's testimonial, it's blocked by the Fifth Amendment. The government will just have to find another way to get at the evidence it thinks might reside in the phones it thinks it might find whenever it actually manages to get a warrant signed by this judge. Until then, it seriously needs to rethink its approach to this problem because the usual stuff isn't going to work in this court.

Filed Under: 4th amendment, 5th amendment, compelled production, encryption, fingerprints, idaho, magistrate judge, phones, ronald bush, unlock


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  • identicon
    Anonymous Coward, 17 Jul 2019 @ 4:15pm

    Someone named Bush actually respecting the Constitution?

    Someone better call me an ambulance.

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

  • identicon
    Anonymous Coward, 17 Jul 2019 @ 4:44pm

    Too bad this won't apply in the Constitution-free zones.

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

  • identicon
    Anonymous Coward, 17 Jul 2019 @ 6:49pm

    "Nooooooooo!" screamed John Herrick Smith.

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

  • identicon
    Anonymous Coward, 17 Jul 2019 @ 11:40pm

    You know, anyone investigating suspected child porn really ought to be doing a better job. And as secretive as serious pedo-types stereotypically can be, the very nature of their sickness -the compulsive bit - should make it fairly easy to catch them at something with a little effort.

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

    • identicon
      Anonymous Coward, 18 Jul 2019 @ 6:04am

      Re:

      What if said pedo were in the white house?

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

      • identicon
        Glen, 18 Jul 2019 @ 7:22am

        Re: Re:

        Then I would ask you what evidence you would have?

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

        • identicon
          Anonymous Coward, 18 Jul 2019 @ 8:13am

          Re: Re: Re:

          They are still investigating Jeffrey Epstein while others are covering it up. Plenty of other items in the news if you are listening.

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

      • identicon
        Anonymous Coward, 18 Jul 2019 @ 10:34am

        Re: Re:

        Clinton is no longer president.

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

      • identicon
        S.A. CP Distributor, 20 Jul 2019 @ 9:35pm

        Re: Re: Queen Hillary

        She never got elected, for obvious reasons. It was her, after all, who famously echoed Hitler when she said "its for the children. "

        Then, FBI Director Comey and the Vatican flooded the world with child porn, so all the child sex slaves could build a raft with the floating detritus of a shredded constitution, and absolutely exploded the meaning of due process, and the warrant requirement, so the kids could live safely in bomb shelters until the age of tax slavery.

        Poor Queen Hillary: her child porn distribution plan was thwarted by Zed Snowden....

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

        • identicon
          Anonymous Coward, 21 Jul 2019 @ 7:50am

          Re: Re: Re: Queen Hillary

          ... and this all happened in the basement of a pizza joint - right?

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

          • identicon
            S.A. CP Distributor, 1 Aug 2019 @ 12:03pm

            Re: Re: Re: Re: Queen Hillary

            Actually, it happened from University of Virgina servers, connected to Maryland, Thailand, Japan, Viet Nam, Malaysia, and South Korea.

            Noteably, during the 2016 election season, UVA hosted child porn. You might recall that Sabrina,Rubin Erdeley and her folks were waging fakerape hoaxes via Rolling Stone magazine at that time too.

            The US military has a huge child porn collection/program/pyop that it distributes around the world, catching “bad guys” via,“redirection” of adult porn search language.

            But the nexus is South Korea, via sites like AVS4you, and JPEG4.

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

    • identicon
      S.A. CP Distributor, 19 Jul 2019 @ 11:09pm

      Re:

      In your analysis, does the term “better job ” include not allowing all those good guys and girls from the NCMEC, and local sex crimes units, working through Fusion Centers to be distributing child porn in the first place ?

      The practice is RAMPANT in the vigilante LEO /private contractor set.

      They use servers hosted at colleges like UVA, linked to Maryland and also military bases in S.Korea to run this speshul program.

      In terms of better -maybe just burn that shit, and prosecute the,actual perpetrators, instead of seeding it all over the world.

      But, I guess that would really fuck up the total deniability of government pedophiles who claim its for the children, wouldnt it?

      CP distribution = job security for those employed in the surveillance state.

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

      • identicon
        Anonymous Coward, 21 Jul 2019 @ 7:55am

        Re: Re:

        If one were to look at the data, it appears to be pointing toward the GOP/conservative side of the political spectrum when it comes to pedophilia. The projection these folk employ is impressive in its ability to allow their base to continue in their denial, eventually it will fail as they all do however there will be damage - lots.

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

        • identicon
          R,ogs/, 1 Aug 2019 @ 12:12pm

          Re: Re: Re:

          Sure, Jeffrey Epstein, Wexler, and the Clinton bankster cabal are clearly all pedohile conservatives, genius.

          And, because you gender pedophiles as male, you overlook the gay community, and especially lesbians with easy access to children.

          So, except that they are all Democrats doing these things under James Comey, and the data is clear.

          Same party that started/continues to finance the Klan, except this generations THOUSAND POINTS OF LIGHT,are all brownish, and multi culty.

          And those, distributing child porn across the globe.

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

  • icon
    vadim (profile), 18 Jul 2019 @ 2:39am

    Stingray

    In this specific case the cops could use stingray to determine phone number, and then subpoena telco for owner info...
    Aftrewards it will be able to oblige owner to unlock the phone

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

  • identicon
    Anonymous Coward, 18 Jul 2019 @ 11:13am

    Since the DMV is willing to give up our biometrics, I'm surprised they dont just create the print from that.

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


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