{"id":246,"date":"2019-02-12T14:17:58","date_gmt":"2019-02-12T19:17:58","guid":{"rendered":"https:\/\/pbacyber.com\/?p=246"},"modified":"2019-02-12T14:17:58","modified_gmt":"2019-02-12T19:17:58","slug":"police-cant-force-you-to-unlock-your-phone-with-finger-or-face-judge-rules","status":"publish","type":"post","link":"https:\/\/pbacyber.com\/index.php\/2019\/02\/12\/police-cant-force-you-to-unlock-your-phone-with-finger-or-face-judge-rules\/","title":{"rendered":"Police Can\u2019t Force You to Unlock Your Phone with Finger or Face, Judge Rules"},"content":{"rendered":"\n

By Jeffrey\nA. Franklin, Prince Law Offices P.C.<\/a><\/p>\n\n\n\n

On January 10, 2019, a federal magistrate judge limited law enforcement\u2019s requests to utilize biometric features, e.g., finger, facial or iris recognition, to unlock smartphones or computers that may be found at a residence during a search. The ruling came In the Matter of the Search of a Residence in Oakland, California<\/a><\/em>, Case No. 4-19-70053, in the United States District Court for the Northern District of California by U.S. Magistrate Judge Kandis A. Westmore. <\/p>\n\n\n\n

What the Government Wanted<\/strong><\/p>\n\n\n\n

The government\nwas investigating two individuals for extortion of a third person. The alleged\nperpetrators were accused of using Facebook Messenger for communications\nthreatening to release an embarrassing video of the victim unless the victim\npaid money. The government agents applied for a search warrant supported by an\naffidavit seeking to:<\/p>\n\n\n\n

  1. Search a specified residence in\nOakland, California.<\/li>
  2. Seize any mobile telephones,\ncomputers or similar devices during the search.<\/li>
  3. Compel any person present to press a\nfinger, thumb or utilize other biometric feature such as facial or iris\nrecognition to unlock the digital devices found in order to permit a search of\nthe contents of the device.<\/li><\/ol>\n\n\n\n

    Fourth Amendment Limits the\nGovernment<\/strong><\/p>\n\n\n\n

    While Judge\nWestmore found probable cause existed to search the residence, she further\nfound the request overbroad and therefore in violation of the Fourth Amendment\nof the United States Constitution, because the request was to seize and search\nthe electronic devices of anyone present and was not limited to the identified\nsuspects and their devices. The judge invited the agents to reapply for a\nwarrant limited to those devices reasonably believed by law enforcement to be\nowned and controlled by the two suspects identified in the affidavit. <\/p>\n\n\n\n

    Fifth Amendment Further Limits the\nGovernment<\/strong><\/p>\n\n\n\n

    Judge\nWestmore went on to determine that forcing suspects to supply a finger, thumb\nor other biometric feature to unlock a device would violate the Fifth Amendment,\nwhich forbids the government from requiring any person to incriminate himself\nor herself. She noted that previous courts have held that a numeric or\nalphanumeric passcode cannot be compelled under the Fifth Amendment, because\nthe act of communicating the passcode is testimonial. <\/p>\n\n\n\n

    The decision\nalso addressed whether the use of a suspect\u2019s biometric feature to potentially\nunlock an electronic device is testimonial under the Fifth Amendment. Judge\nWestmore wrote, \u201c[t]he challenge facing the courts is that technology is\noutpacing the law.\u201d Further, \u201c[c]ourts have an obligation to safeguard\nconstitutional rights and cannot permit those rights to be diminished merely\ndue to the advancement of technology; \u2026. Citizens do not contemplate waiving\ntheir civil rights when using new technology, and the Supreme Court has\nconcluded that, to find otherwise, would leave individuals \u2018at the mercy of\nadvancing technology.\u2019\u201d She cited Carpenter\nv. United States<\/em>, 138 S. Ct. 2206, 2214, 201 L. Ed. 2d 507 (2018). <\/p>\n\n\n\n

    She found in\nthis context, biometric features serve the same purpose as a passcode, which is\nto secure the owner\u2019s content, pragmatically rendering the biometric feature\nand passcode functionally equivalent. She reasoned that use of a finger, thumb\nor other biometric feature to unlock a device would similarly be testimonial\nbecause such an act concedes that the device was in the possession and control\nof the suspect, and authenticates ownership or access to the device and its\ncontents. She finds that the biometric feature is analogous to the nonverbal,\nphysiological responses elicited during a polygraph test, which are used to\ndetermine guilt or innocence, and are considered testimonial. She distinguished\nthis from routine non-testimonial physical acts found not to be protected by\nthe Fifth Amendment, such as providing a blood sample, fingerprinting,\nhandwriting sample or standing in a lineup. <\/p>\n\n\n\n

    Next<\/strong><\/p>\n\n\n\n

    The\nmagistrate judge\u2019s decision could be overturned on appeal, as happened in\nIllinois in 2017 with a similar ruling. This will be an interesting case to\nmonitor. <\/p>\n\n\n\n

    Final Thoughts<\/strong><\/p>\n\n\n\n

    For anyone\nconcerned about government intrusion into their smartphone, I recommend having\na strong alphanumeric passcode. <\/p>\n\n\n\n

    \n\n\n\n

    Jeffrey A. Franklin<\/a> heads\nthe Cyber Law group at Prince Law Offices P.C. He is also the president and\nTechnology Committee Chair of the Berks County Bar Association and principal\ntechnology consultant with BrightLine Tech Solutions LLC. <\/p>\n","protected":false},"excerpt":{"rendered":"

    By Jeffrey A. Franklin, Prince Law Offices P.C. On January 10, 2019, a federal magistrate judge limited law enforcement\u2019s requests to utilize biometric features, e.g., finger, facial or iris recognition, to unlock smartphones or computers that may be found at a residence during a search. The ruling came In the Matter of the Search of
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