Virginia judge: Police can demand a suspect unlock a phone with a fingerprint

But passcodes need not be divulged as per the Fifth Amendment, court says.

Read the whole story

 

[CraigJ ✅]

Use wrong finger 5 times. Oops! Or just turn off the phone. You HAVE to use a passcode after 5 failed TouchID attempts or when powering on.

 

[cmacd]

ewelch[/url]":1c95kz3q]The judge used twisted logic (twisted until it's the opposite) when he says the fingerprint is like DNA. It's not like DNA when it's used as a password. It's a password! And I have a right to not be forced into self-incrimination.

NO U

Until the law comes to its senses, whenever I am approached by a police officer, I will shut my phone down so that it requires a passcode.

Just because I have nothing incriminating on my phone doesn't mean I have to let them look.

In this case it sounds like they have a warrant, in which case you do indeed have to let them look.

The only question is whether you have to decrypt it first. The argument is that your finger is equivalent to a key in your pocket; the police are within their rights, assuming they have a warrant or probable cause, to attempt to use a key found on your person during a lawful search to open and perform a lawful search of a locked container.

You can't (according to this court) be compelled to give a password because giving a password confirms that you know the password. But your finger, like a key, is a mere artifact.

 

[cmacd]

Maybe I can put this in a way crypto-nerd types can understand: using your fingerprint as a means to unlock your phone is, for the purposes of this situation, like having your password written on your hand. Or like keeping the key to the safe holding all your incriminating evidence sitting in your desk drawer.

The cops can get a warrant to search your person or effects. So having the password to your phone effectively written on your body is just plain unwise.

I could understand, however, if a judge required that the method used to unlock a phone not be discussed in a trial. That would be fair. Just discuss what was found on it, and leave it at that. They have a warrant to look at what's on the phone (incriminating or no), and you have no particular right to prevent them from doing so, but you could require that they not use the implied ownership to further incriminate you.

 

[JustQuestions]

cmacd[/url]":2ebdpny0]Maybe I can put this in a way crypto-nerd types can understand: using your fingerprint as a means to unlock your phone is, for the purposes of this situation, like having your password written on your hand.

Anybody who is having a hard time understanding this is definitely NOT a crypto nerd.

 

[PhysicsGuy]

This is reasonable by itself, but not in combination with parallel discovery, asset forfeiture, the lack of police being prosecuted for excessive force/corruption etc...

"Your phone says you were in New Mexico this morning, they have meth there, your *everything on you* was determined to be used as part of drug trafficking we are taking all of it. Also *punch in face*, oh but we won't charge you for this other B.S. we found, so you know... don't complain or we will"

Note, to all the "good cops outnumber the bad cops" apologists: Really? Ok show me the arrest records and successful prosecutions of all the bad cops you've already put away. Hell, or even attempts.

 

[Feniks]

Chmilz[/url]":gbfro9mn]I'm still wondering on what level biometrics make for good security? Fingerprints, eyes, voice - any of that stuff can be spoofed with increasing ease. Knowledge in my brain? No so much.

If what's being protected is valuable enough, someone will cut off hands, heads, carve out eyeballs, etc to get it. There's no way, yet, to suck a code out of my head.

Sperm?

 

[cpragman]

My fingerprint is public information, in the fact that I leave them on everything I touch. I get that.

My fingerprint, however, won't unlock my iPhone. Only my actual finger will, not the print. Was any attempt made to make this distinction in the court case?

 

[cmacd]

PhysicsGuy[/url]":2ojbmvy4]This is reasonable by itself, but not in combination with parallel discovery, asset forfeiture, the lack of police being prosecuted for excessive force/corruption etc...

"Your phone says you were in New Mexico this morning, they have meth there, your *everything on you* was determined to be used as part of drug trafficking we are taking all of it. Also *punch in face*, oh but we won't charge you for this other B.S. we found, so you know... don't complain or we will"

Note, to all the "good cops outnumber the bad cops" apologists: Really? Ok show me the arrest records and successful prosecutions of all the bad cops you've already put away. Hell, or even attempts.

I'd agree, except that I have a hard time objecting to the one unreasonable bit, even give the sea of unreasonable BS. Asset forfeiture, parralel construction, excessive force, etc. are all a separate kettle of fish, that must be addressed directly.

 

[JustQuestions]

cpragman[/url]":2zpk3rh6]My fingerprint is public information, in the fact that I leave them on everything I touch. I get that.

My fingerprint, however, won't unlock my iPhone. Only my actual finger will, not the print. Was any attempt made to make this distinction in the court case?

Wait, what?

Where and how did you get this idea? If I can lift one of your prints (well, assuming it's the correct print), I can definitely unlock your iPhone. Without your finger.

 

[Zeebee]

DyDx[/url]":2uqddrna]

sep332[/url]":2uqddrna]Your passcode is a secret. Your fingerprint is not. That's why it's legal for the police to get your fingerprint. You have no right to "privacy" of your fingerprints.

I'm shocked you are all seemingly on board with this.

This is a violation of the 5th Amendment -- there's no other way around it. While your fingerprint is a 'fact,' police should not be allowed to compel you to provide it if doing so will provide them evidence that incriminates you. That's the entire point of the 5th Amendment, damnit.

Um... you mean like when they take your finger prints to match them against those at a crime scene? You aren't allowed to refuse to provide your fingerprints in that case either, and they can also collect DNA evidence, take your picture, strip search you, measure your height and weight...

If it is a physical characteristic, they can use it against you because you aren't divulging any knowledge (e.g.: something that you know).

 

[PhysicsGuy]

cmacd[/url]":1x7ih2jt]

PhysicsGuy[/url]":1x7ih2jt]This is reasonable by itself, but not in combination with parallel discovery, asset forfeiture, the lack of police being prosecuted for excessive force/corruption etc...

"Your phone says you were in New Mexico this morning, they have meth there, your *everything on you* was determined to be used as part of drug trafficking we are taking all of it. Also *punch in face*, oh but we won't charge you for this other B.S. we found, so you know... don't complain or we will"

Note, to all the "good cops outnumber the bad cops" apologists: Really? Ok show me the arrest records and successful prosecutions of all the bad cops you've already put away. Hell, or even attempts.

I'd agree, except that I have a hard time objecting to the one unreasonable bit, even give the sea of unreasonable BS. Asset forfeiture, parralel construction, excessive force, etc. are all a separate kettle of fish, that must be addressed directly.

I think what i mean is, its a little odd to celebrate a bit of reasonableness, and furthermore, to be comforted by it, when the police are generally unconcerned with whether or not they are operating ethically. If they are complying with the letter of the law, while dragging the spirit of it in the mud... thats like, to be commended or something?

So they can't make you give up your password, but can make you use touch ID... fine, but they can bullshit their way through building justification to compel you to do that, with no actual redress if they overextend their authority.

 

[cmacd]

JustQuestions[/url]":wp22tz0g]

cpragman[/url]":wp22tz0g]My fingerprint is public information, in the fact that I leave them on everything I touch. I get that.

My fingerprint, however, won't unlock my iPhone. Only my actual finger will, not the print. Was any attempt made to make this distinction in the court case?

Wait, what?

Where and how did you get this idea? If I can lift one of your prints (well, assuming it's the correct print), I can definitely unlock your iPhone. Without your finger.

Yeah, didn't Ars do a story on that? It's a bit hit-or-miss, but the proof-of-concept is out there.

Regarless, I'm absolutely sure the argument as to that distinction was made by his defense. I'm not finding any link to the ruling yet, but it would I suppose be interesting to read the precise reasoning used.

The main thing, I'd wager, is that your finger is an artifact. It is a thing. It is a piece of evidence the police can, with proper authorization (particularly a warrant) collect, just as with DNA. It's equivalent to a key in your pocket, or on a chain around your neck. The police in this case seem to have authorization to see the data on the phone. The question is whether your finger is a piece of evidence to be collected, or testimony.

Clearly I fall on the side of the former.

 

[Zeebee]

Kydaria[/url]":2ynjzkg7]Wouldn't this be detrimental to biometric security used in High Security level locations and other such places as well as on mobile devices?

Not really... the point of the biometrics is that you need to be physically present to unlock something. Or rather parts of you need to be physically present. Which is great when you lose your device, but not so great when you have it on you.

If my top-secret organization used retinal scanners and thump prints nothing ever stopped someone from killing me, plucking-out my eyes and cutting-off my thumbs to get into my secret compound.

Alternately if your phone has a face unlock feature, anyone can just hold it to your face to until the phone.

 

[cmacd]

PhysicsGuy[/url]":3hpyyrq6]

cmacd[/url]":3hpyyrq6]

PhysicsGuy[/url]":3hpyyrq6]This is reasonable by itself, but not in combination with parallel discovery, asset forfeiture, the lack of police being prosecuted for excessive force/corruption etc...

"Your phone says you were in New Mexico this morning, they have meth there, your *everything on you* was determined to be used as part of drug trafficking we are taking all of it. Also *punch in face*, oh but we won't charge you for this other B.S. we found, so you know... don't complain or we will"

Note, to all the "good cops outnumber the bad cops" apologists: Really? Ok show me the arrest records and successful prosecutions of all the bad cops you've already put away. Hell, or even attempts.

I'd agree, except that I have a hard time objecting to the one unreasonable bit, even give the sea of unreasonable BS. Asset forfeiture, parralel construction, excessive force, etc. are all a separate kettle of fish, that must be addressed directly.

I think what i mean is, its a little odd to celebrate a bit of reasonableness, and furthermore, to be comforted by it, when the police are generally unconcerned with whether or not they are operating ethically. If they are complying with the letter of the law, while dragging the spirit of it in the mud... thats like, to be commended or something?

I see little celebration. If you want that, look for the story in the near future when the FCC declares ISPs common carriers. I'm seeing discussion, and agreement with a reasonable interpretation of the law.

And yes, we should be comforted when courts make reasonable decisions. Even if everything else in the world is not yet just. You're engaging in nothing more than common whataboutery.

So they can't make you give up your password, but can make you use touch ID... fine, but they can bullshit their way through building justification to compel you to do that, with no actual redress if they overextend their authority.

Separate issue.

 

[Zeebee]

cmacd[/url]":jjmbepg4]

jameskatt2[/url]":jjmbepg4]To prevent this gross use of police powers, one can simply require BOTH your fingerprint AND your passcode to unlock the iPhone.

This TWO-FACTOR way of protection not only is BETTER, but also PROTECTS the consumer from violations of their FIFTH AMENDMENT RIGHTS.

What's the point of that then? Why bother with the fingerprint? The entire point of the fingerprint is convenience vice having to enter a passcode. It's not really added security.

You should be able to opt to use both the fingerprint and a passcode for added security. It's not hard to get someone's finger print; creating a good fake fingerprint is a bit harder but people managed to do it to defeat the iPhone fingerprint reader.

If you were sleeping soundly (or passed-out from drinking) it'd be really easy for someone to "borrow" your hand to unlock your iPhone.

 

[Zeebee]

Midnitte[/url]":3ozlxpfw]To me it seems like an arbitrary difference, both are technically "passcodes" (I.e. a set of information use to unlock a device).

Biometrics are about what you are or what you have... not about what you know. The people can already force you to be fingerprinted... also if you used face unlock, they could just hold the phone up to your face.

A password is information that you know and would need to be forced to reveal, because it wouldn't be otherwise derived (well assuming that it's a good passcode or that you phone will auto-wipe after too many failures... otherwise they could brute force it).

What if I use a printout of someone else's (or artificial) fingerprint as a pass code? If the definition for by "divulging information", wouldn't being forced to hand over my fingerprints be "divulging information" since they aren't likely to know which particular finger I chose as my unlock?

That would be fine. Because your fingerprints wouldn't work... and they can't force you to tell them whose fingerprints you used.

Heck you could use your pink toe (if the iPhone would let you)... if they don't think to try all of your digits, you don't have to tell them how to unlock the phone.

 

[Abresh]

wolf_fire[/url]":3u5xpho1]

Just Joe[/url]":3u5xpho1]1) Buy iPhone because of the one-way encryption.
2) While you're in the pokey, realize the encryption means nothing if you used a fingerprint for the lock screen.

Solution: Buy an iPhone, don't use a fingerprint for the lock screen.

Problem is other judges have ruled that passwords are also not protected under the 5th. So this one will likely go to the SCOTUS.

The SCOTUS should rule that a password being required to be given is the same thing as insisting on someone decode a coded document on paper. Verboten under the law and a violation of the Fifth Amendment.
Now, if the cops want to try to crack my password, fine..... but they had better not bitch if I have software on my phone that wipes it after X attempts.

Zeebee[/url]":3u5xpho1]

Kydaria[/url]":3u5xpho1]Wouldn't this be detrimental to biometric security used in High Security level locations and other such places as well as on mobile devices?

Not really... the point of the biometrics is that you need to be physically present to unlock something. Or rather parts of you need to be physically present. Which is great when you lose your device, but not so great when you have it on you.

If my top-secret organization used retinal scanners and thump prints nothing ever stopped someone from killing me, plucking-out my eyes and cutting-off my thumbs to get into my secret compound.

Alternately if your phone has a face unlock feature, anyone can just hold it to your face to until the phone.

Unless it has software to look for muscle movements and if there are none......

 

[Abresh]

Midnitte[/url]":ni9tzvwf]To me it seems like an arbitrary difference, both are technically "passcodes" (I.e. a set of information use to unlock a device).

What if I use a printout of someone else's (or artificial) fingerprint as a pass code? If the definition for by "divulging information", wouldn't being forced to hand over my fingerprints be "divulging information" since they aren't likely to know which particular finger I chose as my unlock?

I'd actually buy that argument. Maybe we need for touch ID to ask for a SERIES of fingerprints, I.E. more than one in a specific order. That would shut this down REAL quick because between 10 fingers, the amount of possible combinations goes up substantially especially if double fingerprints (two of the same in a row) is not off limits and 4-5 are required.

 

[rick*d]

wolf_fire[/url]":3enqtlz1]And this would be why we need actual computer *science* in education rather than 'keyboarding' and learning how to click on icons in Word.

The judge doesn't know there's no difference in accessing an encoded archive, from a practical standpoint, between a fingerprint and a password/passcode. Both should be under the 5th Amendment as the end result is the same.

Your comment shows why we need real lawyers in court, not computer scientists who think they know the law. The judge is saying there's a legal difference between a padlock (opens with a key - something you have) and a combination lock (opens with a combination - something you know), and since YANAL you really have no basis to say otherwise.

 

[cmacd]

rick*d[/url]":f2w0izec]

wolf_fire[/url]":f2w0izec]And this would be why we need actual computer *science* in education rather than 'keyboarding' and learning how to click on icons in Word.

The judge doesn't know there's no difference in accessing an encoded archive, from a practical standpoint, between a fingerprint and a password/passcode. Both should be under the 5th Amendment as the end result is the same.

Your comment shows why we need real lawyers in court, not computer scientists who think they know the law. The judge is saying there's a legal difference between a padlock (opens with a key - something you have) and a combination lock (opens with a combination - something you know), and since YANAL you really have no basis to say otherwise.

That's well put.

I think part of the problem stems from a fundamental misunderstanding of the purpose of the fifth amendment, and why it was written. IANAL either, but it's my understanding that it has a lot more to do with torture or coercion of the accused, neither of which is going to be an issue with a valid warrant to search a phone. The data on the phone, and the key to unlock that data (the finger) are mere pieces of evidence, which police are absolutely allowed to collect in accordance with procedure given valid probable cause and/or a warrant.

EDIT: Basically the point of the fifth amendment has never been to actually protect the knowledge inside your head (the testimony), but rather to protect you from the methods that would be used to compel release of that knowledge. This isn't an issue when, as I noted before, you've essentially written your password on your hand.

 

[Shazbot!]

Cool. I'm cool with that.

Don't want Apple and their "authorized third parties" having my fingerprint anyway.

 

[aburgesser]

Lyrrad[/url]":8iqimc1n]So, if you can be compelled to provide a fingerprint, can you be compelled to provide the *right* fingerprint?

The TouchID sensor can only store 5 fingerprints. You get five fingerprint tries before you MUST unlock the phone with the backup passcode/word.

I assume that you don't have to tell the police that your left pinky, for example, is the only finger that will unlock the phone, right? Does that count as knowledge that they can't compel you to divulge to self-incriminate?

Can you say contempt of court? Any competent lawyer will.

People seem to forget the minutia of the matter. The courts can compel you to grant access to property/information you control. They can't compel you to claim control. This ruling is consistent with this distinction. They can compel you to attempt to unlock the device with fingerprints, just like they can compel you to unlock it if they can prove you own/control it even if you just state it is yours (remember kids don't talk without a lawyer). They can't compel you to unlock it if there is reasonable doubt you own/control it. (not that I know of a case where the last was tested)

Ignoring the requirements sees contempt of court charges brought. Fingerprints are just easier force compliance with.

 

[ntx757]

Well another solution is not use a fingerprint on Touch ID. For example, use your knuckle, that works as well, just tried it. It's not as convenient, which is all biometrics are for, but maybe slightly more secure.

 

[ZenMasta]

Time to start locking with your toes. Then when you use your fingers it wont work, and they can't ask you for the pw. They'll never ask you to try with your toes

 

[thralloforcus]

So maybe allow you to use TouchID and 4 digit PIN? I'd be ok with the extra step for some peace of mind.

 

[bearheart]

Reboot your iOS device when you're pulled over by holding down both the power button and the home button for about 10 seconds. iOS will require your passcode when it restarts.

You're welcome.

 

[CatOne41]

Shazbot![/url]":nx0y8rlx]Cool. I'm cool with that.

Don't want Apple and their "authorized third parties" having my fingerprint anyway.

Apple doesn't have your fingerprint. A one-way cryptographic hash of identifying information about your fingerprint is stored in the secure enclave of the iPhone. It cannot be retrieved. You can read about it here, but you probably won't:

http://images.apple.com/business/docs/i ... t_2014.pdf

The "authorized third parties" issue is moot. There are no authorized parties to have access to your fingerprint data, Apple or otherwise.

 

[anotherMonkey]

Definitely do not agree with this questionable ruling. The police can identify a suspect with their fingerprint, but when said fingerprint is used as part of a biometric password the rule of no access should apply. I don't know where the Judges head is at with this decision. This is proof that even educated persons of a profession can be incredibly stupid people. IMO.

 

[CatOne41]

rick*d[/url]":l62vb7sc]

wolf_fire[/url]":l62vb7sc]And this would be why we need actual computer *science* in education rather than 'keyboarding' and learning how to click on icons in Word.

The judge doesn't know there's no difference in accessing an encoded archive, from a practical standpoint, between a fingerprint and a password/passcode. Both should be under the 5th Amendment as the end result is the same.

Your comment shows why we need real lawyers in court, not computer scientists who think they know the law. The judge is saying there's a legal difference between a padlock (opens with a key - something you have) and a combination lock (opens with a combination - something you know), and since YANAL you really have no basis to say otherwise.

There are some nuanced differences though with respect to Touch ID. Specifically, the "something you know" (the PIN) is the real key, and it must initially be provided to make Touch ID available. And in the case of a phone reboot or 5 bad Touch ID attempts, that option goes away and you're back to that case again.

In my other response (which was down voted, it's not clear why), there were follow-ups that indicated that if you muffed your fingerprint 5 times it would revert to the PIN case. I can see the "obstruction of justice" angle here (same I guess as if you just threw the phone in the toilet), but what about the case of actual Touch ID error? This may seem theoretical and abstract for purposes of argument, but I think if you had someone ordering you to unlock your phone, that you could have sweaty palms and Touch ID could fail to work. Based on my experiences, this is entirely plausible. In that case, what would happen?

I think this is a fairly interesting case where there are two ways to get the exact same data and they're treated differently. Mainly because the physical analogues have real differences, but the specific iPhone-related analogues don't. And it's (easily) possible to convert between them. While I'm far from the "tin foil hat" type, and generally feel that if someone has a warrant, they likely have good reason, I know there are cases where this isn't the case.

 

[tacothursday]

Turn off phone - problem solved.

 

[musicliberty]

cmacd[/url":2ktw5ojw]


I think part of the problem stems from a fundamental misunderstanding of the purpose of the fifth amendment, and why it was written. IANAL either, but it's my understanding that it has a lot more to do with torture or coercion of the accused, neither of which is going to be an issue with a valid warrant to search a phone. The data on the phone, and the key to unlock that data (the finger) are mere pieces of evidence, which police are absolutely allowed to collect in accordance with procedure given valid probable cause and/or a warrant.

EDIT: Basically the point of the fifth amendment has never been to actually protect the knowledge inside your head (the testimony), but rather to protect you from the methods that would be used to compel release of that knowledge. This isn't an issue when, as I noted before, you've essentially written your password on your hand.

This is quite wrong.

The Supreme Court has interpreted compulsion broadly, and there is no basis for your assertion that the only forbidden compulsion must amount to torture.

It's compulsion if the government threatens you with jail, terminates your employment or in some instances gives you the choice between incriminating yourself or being fired from your government job.

Also the fact the the government has probable cause or a valid warrant under the Fourth Amendment has nothing to do with the Fifth Amendment issue.

The Fourth Amendment is about protection of a reasonable expectation of privacy, whereas the Fifth Amendment's self incrimination privilege is about being compelled to testify against yourself a right guaranteed to the innocent and guilty alike.


The privilege is not vitiated by the police having probable cause to search for things.

The privilege can be invoked in any proceeding, civil, administrative or judicial, and it's no requirement that you have been charged, or that the information sought would directly prove you guilty.

It's sufficient that the information sought might furnish a link in the chain of evidence against you.

For example, if you are called as witness in a murder trial, you can selectively refuse to answer some questions if a correct anser might increase the likelihood that you will be indicted as a coconspirator.

 

[arkiel]

No doubt there are going to be numerous instances of idiot (but clever) cops circumventing TouchID with prints taken at the time of arrest. These cases might even be upheld because cops are stupid, and can't be expected to connect the 'no search of phones without a warrant' with 'no search of phones without a warrant but oh look, the arrestee 'voluntarily' gave us the key during booking.'

 

[musicliberty]

Midnitte[/url]":12ajd2bw]To me it seems like an arbitrary difference, both are technically "passcodes" (I.e. a set of information use to unlock a device).

What if I use a printout of someone else's (or artificial) fingerprint as a pass code? If the definition for by "divulging information", wouldn't being forced to hand over my fingerprints be "divulging information" since they aren't likely to know which particular finger I chose as my unlock?

Then they can only force you to try with all fingers, like standing in a lineup which the Supreme Court has held is not compelled testimony, but they can't force you to divulge if you has used another's fingerprint to lock your phone because the latter act would compel you to divulge the contents of your mind.

However, if the government can independently establish the chain of custody -- namely that you are the sole user of the phone -- it's no longer self incrimination because entering the passcode or unlocking it by other means would not divulge anything the government already knows.

This is the foregone conclusion exception, and it has been a salient argument in a lot of encryption cases.

I think the judge got the Fifth Amendment question correct, but the defendant may still be compelled to unlock the phone, if the Commonwealth can later establish the chain of custody.

If he has confessed to the police, that the phone is his, but has refused to unlock it, then we'll have a quite different issue.

However, if the police found a laptop with a lot of random data, but was unable to prove that it was encrypted, or that the suspect was able to decrypt, we would have an issue similar to the 11th Circuit's case wherein a child pornography suspect successfully pled the Fifth.

Basically you your best shot at pleading the Fifth is if you have not used encryption merely to restrict access to your computer but rather to hide the existence of incriminating data from the government.

The reason for this is that proving physical custody of a computer, phone or storage media is easier for the government than proving the existence of incriminating data hidden inside other data.

There is Truecrypt's hidden volume, but I think that any form of steganographic encryption which can't be easily proven will do.


And did I forgot to mention that even if the government can force someone to divulge the password to an outer encryption layer, it still can't force him to confess to the existence of additional steganographic data which remains unproven.

An interesting hypothetical case is if the government successfully compels a suspect to unlock his computer.

The suspect can't plead the Fifth to facts which are already a foregone conclusion, but he may still plead the Fifth if asked if there is additional hidden data the government doesn't know.

 

[Abresh]

aburgesser[/url]":li58f8yp]

Lyrrad[/url]":li58f8yp]So, if you can be compelled to provide a fingerprint, can you be compelled to provide the *right* fingerprint?

The TouchID sensor can only store 5 fingerprints. You get five fingerprint tries before you MUST unlock the phone with the backup passcode/word.

I assume that you don't have to tell the police that your left pinky, for example, is the only finger that will unlock the phone, right? Does that count as knowledge that they can't compel you to divulge to self-incriminate?

Can you say contempt of court? Any competent lawyer will.

Can you say "Totally wrong on the legal issues!" This is more equivalent to asking someone to decode a coded document that has no paper 'key' to the document in question, just the key in your mind. The courts have already ruled numerous times in numerous states and even nations that you cannot be compelled to do that, it goes against the whole principle of "Right against self-incrimination".

Telling someone that "Yeah, X, Y and Z fingers will allow you to violate my privacy and get into my personal private papers that are analogous to those coded physical documents!" IS Fifth Amendment breach.
Even the conservatives on the Supreme Court would have to agree with that reasoning.

 

[Romberry]

ChickenHawk[/url]":33uhro71]

bleeper[/url]":33uhro71]

whquaint[/url]":33uhro71]

Solomon Black[/url]":33uhro71]Am I out on a limb for thinking it ought not be permitted for the police to expect any cooperation out of you if you are a suspect?

Police have been taking fingerprints of suspects for years. You can't refuse. Just because recent tech companies have CHOSEN to use the fingerprint for "security" does not eliminate the long-standing right of police to take your fingerprint. .

Odd i can't find that "right" in the Constitution.

Not all "Rights" come from the constutition. The general power would be in the power to provide security et al.

Correction. None of our rights come from the Constitution. The Constitution protects rights that are inherent. The Constitution is not (and never was) in any way a document that "grants" rights to the people. Instead, it's a document through which the people grant limited powers to the government. This is not a small distinction, and I despair that so many Americans seem totally uninformed (or worse, totally misinformed) on this subject. Do they not teach civics in school anymore or what?

 

[CraigJ ✅]

aburgesser[/url]":2c9w6wfb]

Lyrrad[/url]":2c9w6wfb]So, if you can be compelled to provide a fingerprint, can you be compelled to provide the *right* fingerprint?

The TouchID sensor can only store 5 fingerprints. You get five fingerprint tries before you MUST unlock the phone with the backup passcode/word.

I assume that you don't have to tell the police that your left pinky, for example, is the only finger that will unlock the phone, right? Does that count as knowledge that they can't compel you to divulge to self-incriminate?

Can you say contempt of court? Any competent lawyer will.

People seem to forget the minutia of the matter. The courts can compel you to grant access to property/information you control. They can't compel you to claim control. This ruling is consistent with this distinction. They can compel you to attempt to unlock the device with fingerprints, just like they can compel you to unlock it if they can prove you own/control it even if you just state it is yours (remember kids don't talk without a lawyer). They can't compel you to unlock it if there is reasonable doubt you own/control it. (not that I know of a case where the last was tested)

Ignoring the requirements sees contempt of court charges brought. Fingerprints are just easier force compliance with.

Clearly IANAL. Let's say you use your thumb to unlock your phone and your index finger isn't registered. When forced you use your index finger to attempt to unlock the phone 5 times, it doesn't work because you're nervous and sweaty and couldn't get it to line up right. Since the fingerprints are stored in the secure enclave and unretrievable, and the phone is now locked by a (hopefully longer than 4 character pin) password, wouldn't they have to prove contempt charges? How would they do that? Produce a witness that saw you unlock with your thumb at some point in the past? I guess I'm not sure how contempt works - can a judge basically do whatever they want to do and the accused has no recourse at all?

I doubt I'll ever be in a situation where the cops want to look at my phone, and I further doubt that there would ever be anything on my phone that would be a problem for me, but if I was unable to turn it off the above is how I'd play it. My kitty pictures are none of your business.

 

[CraigJ ✅]

Romberry[/url]":2w6svsbz]

ChickenHawk[/url]":2w6svsbz]

bleeper[/url]":2w6svsbz]

whquaint[/url]":2w6svsbz]

Solomon Black[/url]":2w6svsbz]Am I out on a limb for thinking it ought not be permitted for the police to expect any cooperation out of you if you are a suspect?

Police have been taking fingerprints of suspects for years. You can't refuse. Just because recent tech companies have CHOSEN to use the fingerprint for "security" does not eliminate the long-standing right of police to take your fingerprint. .

Odd i can't find that "right" in the Constitution.

Not all "Rights" come from the constutition. The general power would be in the power to provide security et al.

Correction. None of our rights come from the Constitution. The Constitution protects rights that are inherent. The Constitution is not (and never was) in any way a document that "grants" rights to the people. Instead, it's a document through which the people grant limited powers to the government. This is not a small distinction, and I despair that so many Americans seem totally uninformed (or worse, totally misinformed) on this subject. Do they not teach civics in school anymore or what?

Apparently not based on how certain agencies seem to be wiping their collective asses with it.

 

[arthurdent4242]

bames53[/url]":1ekthdlv]

So, its not a question of warrantless access to privacy of the data on the phone, it’s the legal method of getting to it?

Well presumably they would be required to get a warrant to make you use your fingerprint to unlock the device, just as they would be required to get a warrant to make you hand over a physical key.

Moral of the story: use a complex password to unlock your phone, not your fingerprint.

 

[Chuckstar]

CatOne41[/url]":1fiiotv2]

rick*d[/url]":1fiiotv2]

wolf_fire[/url]":1fiiotv2]And this would be why we need actual computer *science* in education rather than 'keyboarding' and learning how to click on icons in Word.

The judge doesn't know there's no difference in accessing an encoded archive, from a practical standpoint, between a fingerprint and a password/passcode. Both should be under the 5th Amendment as the end result is the same.

Your comment shows why we need real lawyers in court, not computer scientists who think they know the law. The judge is saying there's a legal difference between a padlock (opens with a key - something you have) and a combination lock (opens with a combination - something you know), and since YANAL you really have no basis to say otherwise.

There are some nuanced differences though with respect to Touch ID. Specifically, the "something you know" (the PIN) is the real key, and it must initially be provided to make Touch ID available. And in the case of a phone reboot or 5 bad Touch ID attempts, that option goes away and you're back to that case again.

In my other response (which was down voted, it's not clear why), there were follow-ups that indicated that if you muffed your fingerprint 5 times it would revert to the PIN case. I can see the "obstruction of justice" angle here (same I guess as if you just threw the phone in the toilet), but what about the case of actual Touch ID error? This may seem theoretical and abstract for purposes of argument, but I think if you had someone ordering you to unlock your phone, that you could have sweaty palms and Touch ID could fail to work. Based on my experiences, this is entirely plausible. In that case, what would happen?

I think this is a fairly interesting case where there are two ways to get the exact same data and they're treated differently. Mainly because the physical analogues have real differences, but the specific iPhone-related analogues don't. And it's (easily) possible to convert between them. While I'm far from the "tin foil hat" type, and generally feel that if someone has a warrant, they likely have good reason, I know there are cases where this isn't the case.

There might be an argument that purposefully screwing up the fingerprint input would be obstruction of justice. Just like if they compelled you give DNA, purposefully contaminating the sample would be obstruction of justice. However, the burden of proving you did it on purpose, and it wasn't just an error in the sensor, would (at least in theory) reside with the prosecution.

 

[Romberry]

I sorta wonder if in the age of the surveillance state whether or not this whole issue of privacy (in which I am a STRONG believer) isn't close to becoming a moot point. Witness "Secret Manuals Show the Spyware Sold to Despots and Cops Worldwide."

People need to take back their fundamental rights and make clear that in these United States, the Constitution is a grant of **limited powers** to the government by the people and not a grant of rights to the citizens subject to the whims of a government chafing at the limits placed upon it.