“A California judge has ruled that American cops can’t force people to unlock a mobile phone with their face or finger,” Thomas Brewster reports for Forbes. “The ruling goes further to protect people’s private lives from government searches than any before and is being hailed as a potentially landmark decision.”
“Previously, U.S. judges had ruled that police were allowed to force unlock devices like Apple’s iPhone with biometrics, such as fingerprints, faces or irises. That was despite the fact feds weren’t permitted to force a suspect to divulge a passcode,” Brewster reports. “The order came from the U.S. District Court for the Northern District of California in the denial of a search warrant for an unspecified property in Oakland. The warrant was filed as part of an investigation into a Facebook extortion crime, in which a victim was asked to pay up or have an ’embarassing’ video of them publicly released. The cops had some suspects in mind and wanted to raid their property. In doing so, the feds also wanted to open up any phone on the premises via facial recognition, a fingerprint or an iris. While the judge agreed that investigators had shown probable cause to search the property, they didn’t have the right to open all devices inside by forcing unlocks with biometric features.”
“On the one hand, magistrate judge Kandis Westmore ruled the request was ‘overbroad’ as it was ‘neither limited to a particular person nor a particular device,'” Brewster reports. “But in a more significant part of the ruling, Judge Westmore declared that the government did not have the right, even with a warrant, to force suspects to incriminate themselves by unlocking their devices with their biological features… ‘If a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device,’ the judge wrote.”
Read more in the full article here.
MacDailyNews Take: All hail U.S. Magistrate Judge Kandis Westmore for her common sense and eminently logical ruling!
Here’s to the law finally beginning catching up with tech!
Sometimes the law gets too cute. We shouldn’t leave common sense out of the equation. The process is the same thing. You’re getting access to someone’s most private information by forcing someone to give you the key. — Miami defense attorney David Oscar Markus, May 2016
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Ultimately… the U.S. Supreme Court will likely have to weigh in on this issue. — MacDailyNews, May 4, 2017
SEE ALSO:
FBI forces suspect to unlock an Apple iPhone X with their face – October 1, 2018
Apple’s ‘cop button’ won’t keep your iPhone safe from the police – August 18, 2017
Florida man sentenced to 180 days in jail for not divulging his iPhone passcode – May 31, 2017
Florida judge orders reality TV actress to unlock Apple iPhone in ‘sextortion’ case – May 4, 2017
Miami sextortion case asks if a suspect can be forced to hand over Apple iPhone password – April 28, 2017
Feckless FBI unable to unlock iPhone, even with a ‘fingerprint unlock warrant’ – May 12, 2016
The Touch ID lock on your iPhone isn’t cop-proof – May 11, 2016
U.S. government wants your fingerprints to unlock your phone – May 1, 2016
Should you disable Touch ID for your own security? – May 9, 2016
U.S. government wants your fingerprints to unlock your phone – May 1, 2016
Virginia police can now force you to unlock your smartphone with your fingerprint – October 31, 2014
Apple’s Touch ID may mean U.S. iPhone 5s users can’t ‘take the fifth’ – September 12, 2013
Apple’s iPhone 5S with biometric identification: Big Brother’s dream? – September 11, 2013
Frankly, this ruling makes way too much sense to have come out of a California court. Even a Federal court located in California.
And yes, I live in California.
OK lets take that 1 step further, does this mean when arrested they can not require you to give a finger print or DNA Sample?
Both can be used to connect you to a crime or crime seen.
That is one problem with this decision: how is a finger press for fingerprint analysis less invasive than a finger press to unlock a device WITH A WARRANT? How is a camera scan to provide a picture for a photo lineup less invasive than a camera scan to unlock a device WITH A WARRANT? All these things seem to be the sort of thing that the Fourth Amendment allows with a judicial order, not the sort of thing that the Fifth Amendment prohibits entirely.
The decision is inconsistent with plenty of prior decisions by federal and state courts. Note that a magistrate judge is not the same as a US District Judge. They are not Senate-confirmed Article Three judges but appointees that essentially serve at the pleasure of the District Judges in their District. They are, in a sense, the federal equivalent of state magistrates like municipal judges and justices of the peace. A Magistrate Judge decision has no value as precedent even within the same District, much less within other parts of the Circuit or country.
So don’t put too much weight on this. PLEASE NOTE: the issue is not whether law enforcement officers can break into devices at will, but whether judges still retain their Fourth Amendment power to authorize reasonable searches and seizures based on a showing of probable cause from a reliable source under oath or whether a criminal suspect can frustrate that power simply by encrypting the data.
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No salesman will call, but cops might show up and force you to unlock your iPhone with finger or face. It’s easy for them to do, all they have to do is call you an enemy combatant, and not even the Geneva convention will protect you.
I don’t think this ruling applies to Immigration And Customs. You have been warned that when you travel, turn off your phone before you enter Customs.