from the but-it-still-may-not-have-worked dept
Law enforcement is still trying to break into iPhones and still using the All Writs Act to do so. A sex trafficking prosecution involving the ATF has resulted in a suspect being ordered to cough up his, um, fingerprint, in order to allow investigators to access the contents of his phone. Matt Drange of Forbes has more details [caution: here there be ad-blocker blocking]:
Prosecutors hoped that the search, conducted on an iPhone 5s by special agent Jennifer McCarty of the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives, would help them piece together evidence in an alleged sex trafficking case involving a man named Martavious Keys. Keys had the iPhone with him when he was arrested on May 19, according to recently unsealed court filings. A week later, on May 26, prosecutors asked the judge in the case to force Keys to open the device with his fingerprint, unlocking a potential trove of information including emails, text messages, contacts and photos stored on the device that could be used as evidence.
While courts generally agree that a fingerprint is non-testimonial — despite its ability to unlock all sorts of testimonial stuff — there aren’t too many courts willing to extend that coverage to passwords. There are exceptions, of course, but items held in someone’s mind are given a bit more deference than those at their literal fingertips.
And that’s likely why the All Writs-compelled fingerprint access hasn’t allowed the ATF inside Keys’ phone. The feds can force Keys to place his finger on the iPhone screen all they want, but it likely won’t unlock the device. Apple’s security requires a passcode as well as a fingerprint if it’s been more than 48 hours since the phone was last unlocked. The time elapsed between when the phone was seized and the order obtained for Keys’ fingerprint added another layer of security to the phone — one not so easily defeated with All Writs orders.
Keys is no one’s idea of a sympathetic party. He allegedly forced two teen girls, aged 14 and 15, to have sex with men for several hours a day by drugging them into submission. Whether or not his phone contained more evidence is unknown. It’s unclear from the recently unsealed documents whether federal investigators found another way into the device after the application of Keys’ fingerprint failed to unlock the phone.
And that’s sort of a problem. The government is using All Writs orders for a great many things these days, often during sealed cases and with little to no transparency. The fact that Congress apparently authorized this as a fill-in for things warrants couldn’t necessarily reach has made the use of All Writs requests both indispensable and easily-abused. The fact that Congress authorized this in 1789 — with no conceivable idea of the form “papers” would take over the next 200+ years — usually seems to work in the government’s favor.
A bit more transparency would go a long way to assuage concerns about abuse, but overuse/abuse of the 1789 Act is likely the reason there isn’t more transparency. If the court decides it’s going to compel Keys to turn over his passcode as well (assuming the phone hasn’t already been cracked), at least it won’t have to toss him in jail if he doesn’t. Keys is already behind bars awaiting trial for his sex trafficking indictment. On one hand, that lowers the coercive value of imprisonment. On the other hand — if he refuses and is hit with a contempt order — he’ll remain in jail indefinitely, even without having been found guilty of anything more than contempt of court.