Court Says Compelled Production Violates Fifth Amendment... Unless The Gov't Takes Certain Steps First

from the a-small-safeguard-is-better-than-none-at-all dept

A federal judge in California has issued a ruling [PDF] on the Fifth Amendment that upholds both the Constitutional right and a request that appears to violate it. It doesn't all fit together perfectly, but the "foregone conclusion" doctrine factors into it. But constraints are put on this conclusion and, ultimately, that's how the government is permitted to carry out this search.

It originates, as so many of these do, from a drug investigation. The government believes it can find evidence it needs for its prosecution by searching the phone found on the suspect. Bad news: the phone's contents are locked behind a biometric wall and it needs judicial permission to force the suspect to open the phone for it.

The government argued that biometric features like fingerprints, retinas, blood, facial features, etc. are non-testimonial because they are physical evidence, not testimony. Obviously, a face that unlocks a phone is also a face anyone can see. It imparts no knowledge the suspect may want to keep secret. But combined with a locked device requiring biometric input, it actually imparts knowledge law enforcement may not have when they seek compelled production: it identifies the person as the owner of the device.

This can be testimonial, depending on the government's foregone conclusions, or lack thereof. The court says as much here:

Here, compelling an individual who is a target of the investigation to use his or her finger or face to unlock a device represents incriminating testimony within the meaning of the Fifth Amendment because it amounts to an assertion of fact that that the individual has the ability to unlock the device, which in turn makes it more likely that the individual locked the device and put the material sought by the warrant on the device.

More to the point, the government's arguments about biometric features not being testimonial is a dodge. Unlike being fingerprinted after an arrest, applying a fingerprint to a phone gives the government what it really wants -- not what it says it wants when it engages in this sort of intellectual dishonesty. The court calls this out:

Unlike a fingerprint or blood sample, which is obtained for the purpose of identifying a particular individual, the only purpose of compulsory application of a biometric feature to a device is to obtain access to the device's contents; the government has no interest in obtaining the physical characteristic (e.g., the fingerprint) per se.

So, if compelled production of fingerprints, retinas, or whatever's needed to unlock a seized phone violates the Fifth Amendment, how does the government work around it? Well, normally the court would examine its conclusions -- what evidence the government already has that links the locked device to the suspect in custody.

In this case, the court doesn't go that far. It gets out ahead of this matter and forces the government to reach these conclusions before it can start applying biometric features.

During the execution of the search of the SUBJECT PREMISES described in Attachment A, law enforcement personnel are authorized to compel [named individuals] to apply their respective biometric feature(s) to a smartphone or other electronic device capable of being unlocked by such feature in order to search the contents of the device as authorized by this warrant, but only if the following conditions are met:

(1) the device is found on the person of one of the individuals named above or at the SUBJECT PREMISES; and

(2) as to a particular device, law enforcement personnel have information that the particular individual who is compelled to apply his or her biometric feature(s) has the ability to unlock that device, such that his or her ability to unlock the device is a foregone conclusion.

This means the government can't find a bunch of devices and start playing fingerprint roulette with this court order. It will have to find devices on certain people and then it still needs to be able to connect the device to the person holding it before it can compel production.

This is the balance the court strikes: the government can bypass the Fifth Amendment if it lines everything up first. It's the same sort of compromise courts create for the Fourth Amendment. Unreasonable searches are forbidden. A warrant, granted by the court, allows the government to engage in unreasonable searches. In this case, the court is creating a narrow exception to the Fifth Amendment that forces the government to show its work before it can start compelling production. It's not perfect, but it will have to do until more case law is established and higher-level courts are willing to start handing down precedent.

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Filed Under: 5th amendment, biometrics, compelled production, passwords, police

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  1. icon
    That One Guy (profile), 23 Sep 2019 @ 3:04pm

    So very close...

    After finding that compelling someone to unlock a device is equivalent to forcing them to hand over potentially self-incriminating evidence the next step should have been '... and therefore that is not allowed'.

    The idea that they can only force unlocking if the person has the device on them at the time is better than previously, but it's still not a good ruling.

    And as always(because apparently it still needs to be said), while biometrics can be used for a user name, they should never be used as an account/device password. If attempts to unlock devices required an actual password rather than merely a body part then judges would find it much more difficult(though not impossible) to twist themselves into knots allowing it.

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

  2. icon
    A-Sbeve-Or-Two (profile), 23 Sep 2019 @ 4:21pm

    Ugh... Seriously?

    Forcing us? Have you never heard of a thing called a Search Warrant?

    • Force Unlocking is no exception to using a search warrant. If you want to unlock my phone and download my collection of Rugrats Unrated playlists, let me see that search warrant first.
    • Changing the law to get your way is just as idiotic and disrespectful as the invasion of bathroom privacy.
    • This is why political cartoonists draw mockery about our government. Maybe they should get Common Sense for Dummies so they can learn the basics of human decency.

    Yet we still hear our nation falling apart every day. Just like the Glue: “I’m Breaking”

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

  3. icon
    TKnarr (profile), 23 Sep 2019 @ 4:37pm

    Re: So very close...

    Not quite. The testimonial part is where the production of a fingerprint that can unlock the device shows that the person who produced it owns the device when the government can't prove that already. What the court is saying is that the government has to already be able to prove that this person owns the device before it can demand they produce their fingerprint, at which point any testimonial value of the production is already moot. An analogous situation would be keys to a locked cabinet in a home. In general the police can't demand that everybody cough up their key rings, but if they can identify people who live there then the courts are probably going to let the police make all of those people give up their key rings so the police can try the keys on the lock. And it remains analogous because the police still have to prove it's your key ring that had the key that opened the cabinet, although usually that's simple enough that nobody contests it in court (it's the only key ring you have and you can't/won't identify whose it is and you aren't disclaiming any ownership of it).

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

  4. identicon
    Anonymous Coward, 23 Sep 2019 @ 4:41pm

    SEarch Warrent

    Looks like they've gotten past 1 step of the obfuscation, but still need to go a step or two further.
    Initially claim: We're just using your fingerprint and that's not a secret since it's publicly visible.

    This step: They really don't care about the fingerprint, they really want to prove that the device is really yours.

    Reality: They don't care that the device is yours. They already have plenty of evidence to that point. What they really want is access to the contents of the device.

    Solution: Use a search warrant to include the device to be searched and the expected contents to be found. And be SPECIFIC. Don't ask for "Documents that may be evidence of a crime", instead specify "Documents that are evidence of a SPECIFIED CRIME." That eliminates generic fishing expeditions. Especially if things are arranged that any data revealed by the warrant that doesn't pertain to the specific issues in the warrant is not usable for any potential future criminal cases or warrants. E.G. You better be damn sure of what you're looking for, because if it's just a fishing trip, you're gonna have to toss and caught fish back.

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

  5. icon
    NOYFUB (profile), 23 Sep 2019 @ 9:28pm

    mythbusters already solved this

    I realize that members of the D.A. are complete authoritarian jerkwads who are stupid as fuck, but I didn't realize how stupid they were.
    Mythbusters showed just how easy it is to make someones fingerprints.
    So get a court order and make a copy of their fingerprints to use.
    It would be a whole lot cheaper than the long drawn out court battle currently going on.

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

  6. identicon
    teka, 23 Sep 2019 @ 11:04pm

    Re: Ugh... Seriously?

    Easy! Just add a boilerplate 'and all devices' type statement to every search warrant ever. Not saying it is proper, saying they can get away with it.

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

  7. identicon
    Anonymous Coward, 24 Sep 2019 @ 7:46am

    Re: Re: Ugh... Seriously?

    The gotcha isn't just that. A warrant has to both specify where to search and WHATS EXPECTED TO BE FOUND.

    Fishing expeditions are not legal. A search warrant for "All papers and documents that might indicate evidence of a crime we're currently not aware of" isn't legal. But that's exactly what they're attempting to do with the contents of smart phones.

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

  8. icon
    Thad (profile), 24 Sep 2019 @ 8:29am

    Re: Ugh... Seriously?

    Did you read the article? It explains the legal argument about the difference between a search and testimony, the debate as to whether compelled device unlocking qualifies as the former or the latter, and a legal ruling limiting the circumstances under which such unlocking can be legally compelled.

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

  9. icon
    James Burkhardt (profile), 24 Sep 2019 @ 9:02am

    Re: Re: Ugh... Seriously?

    He also clearly has missed that the forced unlocking can only be done with a warrant, thats like his entire point is that they need a search warrant, which this ruling also needs.

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

  10. identicon
    Anonymous Coward, 24 Sep 2019 @ 5:58pm

    What a bullshit ruling this amounts to. Compelling someone to incriminate themselves still violates the fifth amendment.

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

  11. icon
    JdL (profile), 25 Sep 2019 @ 6:20am

    Avoid using fingerprints

    ... to unlock your device. Use a long password instead. For the most part, courts have not ruled that a person must reveal his password or use it to unlock his device.

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

  12. icon
    Coyne Tibbets (profile), 27 Sep 2019 @ 2:02am

    Fingerprints drift over time

    I'm going to laugh when the government finds out his fingerprint does not open the phone.

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

  13. icon
    btr1701 (profile), 1 Oct 2019 @ 11:13am

    Unreasonable searches are forbidden. A warrant, granted by the court, allows the government to engage in unreasonable searches.

    No, a warrant supported by probable cause doesn't allow the government to engage in unreasonable searches. The warrant makes the search reasonable.

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

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