Last week in a speech at Boston College, FBI Director James Comey shocked the country by stating what we had already known for a while, “There is no such thing as absolute privacy in America.” He was referring to the amount of technology in our lives and its capability, further saying that the intelligence community can and does access it. We should all just accept it. But a federal judge in Chicago ruled yesterday that Comey’s statement is maybe not so true. There is still privacy on this continent.
The case involved an alleged instance of child pornography access. Investigators believed that someone within a residence was accessing it. They needed to get into a fingerprint protected iPhone in the home for further proof. For that, they wanted a search warrant that compelled everyone in the residence to unlock the phone.
Federal Judge David Weisman wrote a 14-page response in which he said that there wasn’t enough evidence to compel such, “sweeping intrusions.” He added that just because a person lived there, didn’t mean they accessed the pornography.
The accessing of smartphones in legal cases is a sticky issue and conflicting rulings and precedents have been set over the last few years. Last year, Forbes reported a case where the Justice Department sought a search warrant to walk into a particular property and make everyone there unlock any fingerprint enabled device believed to be relevant to the case. How they could know what was relevant without going into the phone in the first place? That is the million dollar question. Marina Medvin of Melvin Law told Forbes Magazine that the government overreach in this case was egregious.
“They want the ability to get a warrant on the assumption that they will learn more after they have a warrant,” she said. ”Essentially, they are seeking to have the ability to convince people to comply by providing their fingerprints to law enforcement under the color of law – because of the fact that they already have a warrant. They want to leverage this warrant to induce compliance by people they decide are suspects later on. This would be an unbelievably audacious abuse of power if it were permitted.”
Unfortunately, the warrant was served, the family was compelled to provide the fingerprint and is now trying to put the entire affair behind them. But this is not the end, and honestly, not even the beginning of navigating this gray area.
Law enforcement agencies routinely ask Apple for help breaking into iPhones when it involves criminal activity. A spokesman for Apple told the Chicago Tribune that the company receives “thousands,” of requests each year. They actually do provide assistance with about 80% of the requests. But a recent California case hit headlines when the technology company put the brakes on the request.
The FBI sought their help breaking into an encrypted iPhone 5C when its owner was suspected in the San Bernadino terrorist attacks. The request was unique, Forbes reported, in that it asked the technology company to create a specific program so that the agency could review the phone. Apple wouldn’t do it, saying that such intrusion would set a “terrible precedent.” It all turned to out to be for naught, the FBI hacked it themselves.
But the rights of fingerprint protected phones are still being forged. David Shapiro, with Northwestern University MacArthur Justice Center, told The Chicago Tribune that this was an important decision.
“A cellphone is almost a record of your mind and your life,” Shapiro said. “It reveals your thoughts. It reveals who your friends are. It reveals where you go, where you spend your time. It reveals what books you buy on Amazon.”
According to Weisman, the application of a fingerprint, at some level, is self-incriminating. The precedent that the government can access such devices, according to Weisman, was based on “outdated boilerplate language.” The laws used reference “personal digital assistants,” and harken to the days when cables were connected between computers and phones. Weisman says that this is a new day, and the definitions of privacy as it relates to cell phones and the Fourth and Fifth Amendments, need to be rewritten.
“With a touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents,” Weisman wrote in the 14 page memorandum.
To compel any individual within a location to provide fingerprints also violates search and seizure rights.
“In the instant case, the government is seeking the authority to seize any individual at the subject premises and force the application of their fingerprints as directed by government agents. Based on the facts presented in the application, the Court does not believe such Fourth Amendment intrusions are justified based on the facts articulated,” Weisman wrote.
However, Weisman did write that this is all under the heading of “innocent until proven guilty” incidents. If the government can provide evidence that the phone needs to searched for a specific reason, a search warrant can be granted. But, the warrant must explain whose phone, why they need it, and what they expect to find.
Finally, at last, some sense to the whole privacy versus security debate.