Judge Kandis Westmore ruled that police do not have the power to force people to unlock their phones using their fingerprint, facial recognition, or any other biometric tools used to ensure privacy on various devices.
Westmore called the request of police “overbroad,” and many people agree.
Authorities requested a search warrant in a social media extortion investigation. In the case, a victim was asked to pay up or have an “embarassing” video of them publicly released on Facebook.
Police had a few suspects in mind and wanted to raid all their properties, federal authorities also demanded the suspects to open their phones during the searches, using facial recognition, an iris, or a fingerprint, so they could examine them for evidence.
“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.”
“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. But according to a ruling uncovered by Forbes, all logins are equal.”
However, what is more significant is that Westmore declared that the government did not have the right, even with a warrant, to force suspects to incriminate themselves using this sort of unlocking.
This is the first of its kind. The courts have previously ruled that suspects do not have to turn over verbal passcodes, because those are “testimonial,” but body parts weren’t covered under the Fifth Amendment.
Westmore logically decided that the two were the same. She declared that “technology is outpacing the law,” and wrote that fingerprints and face scans were not the same as “physical evidence,” when considered in a context where those body features would be used to unlock a phone.
“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.
Westmore added that there were other ways to collect the evidence, such as getting Facebook to deliver messages, etc.
“Over recent years, the government has drawn criticism for its smartphone searches. In 2016, Forbes uncovered a search warrant not dissimilar to the one in California. Again in the Golden State, the feds wanted to go onto a premises and force unlock devices with fingerprints, regardless of what phones or who was inside.”
Many people consider that a gross violation of the Fifth Amendment.
Andrew Crocker, senior staff attorney at the digital rights nonprofit Electronic Frontier Foundation, said, “While that’s a fairly novel conclusion, it’s important that courts are beginning to look at these issues on their own terms.”
He added, “In its recent decisions, the Supreme Court has made clear that digital searches raise serious privacy concerns that did not exist in the age of physical searches—a full forensic search of a cellphone reveals far more than a patdown of a suspect’s pockets during an arrest for example.”
Many people agree.