Judge Rules Against Law Enforcement in Biometrics Unlocking Case

cageymaru

cageymaru

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A judge has ruled against law enforcement in a case where police officers were seeking to unlock a phone by using the fingerprint, iris or face of the owner. These biometrics unlocks have been the center of legal debates for years as previous judges had ruled that law enforcement could unlock devices using biometrics. Passcodes can't be used to unlock devices as that is against the law to make a person divulge their password. Thus they are considered a "testimonial." Judge Westmore ruled that biometrics should be protected in the same way.

"'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." This ensures a person's 5th Amendment protections against self-incrimination are respected. "As Judge Weisman astutely observed, using a fingerprint to place someone at a particular location is a starkly different scenario than using a finger scan "to access a database of someone's most private information." In re Application for a Search Warrant, 236 F. Supp. 3d at 1073. Thus, the undersigned finds that a hiometric feature is analogous to the nonverbal, physiological responses elicited during a polygraph test, which are used to determine guilt or innocence, and are considered testimonial. See Schmerher, 384 U.S. at 764." The ruling by Judge Westmore can be found here.

It follows that any argument that compelling a suspect to provide a biometric feature to access documents and data is synonymous with producing documents pursuant to a subpoena would fail. As the Riley court recognized, smartphones contain large amounts of data, including GPS location data and sensitive records, the full contents of which cannot be anticipated by law enforcement. See Riley, 134 S. Ct. at 2492.^ Consequently, the Government inherently lacks the requisite prior knowledge of the information and documents that could he obtained via a search of these unknown digital devices, such that it would not be a question of mere surrender. See Hubbell, 530 U.S. at 44-45. Additionally, the Government would be unable to articulate facts to compel the unlocking of devices using biometric features by unknown persons the Government could not possibly anticipate being present during the execution of the search warrant. Indeed, the affidavit makes no attempt to do so.
 
Interesting case here, though it does bring some questions - if someone is arrested, it is routine to take their prints and do a mugshot. So while this decisions looks like it might prevent police from directly forcing the person to open the phone, would it be okay for police to use those prints to make a fake finger to unlock the phone, or wave a picture of the mugshot to fool the facial lock? (That works on some phones). These sort of details can be important in a case. Personally, I don't use biometrics for any sort of password; a password you can't change is just a bad idea.
 
I have my phone set to require a pin to unlock when it is rebooted but face or fingerprint unlock for everything else. That way, all I have to do to keep a law enforcement officer from accessing my phone is take the 2 seconds to reboot it. It has been 10 years since I have had an encounter with law enforcement (just questioning me at a the scene, but I wasn't evolved at all, so it was fast).
 
dreadcthulhu said:
Interesting case here, though it does bring some questions - if someone is arrested, it is routine to take their prints and do a mugshot. So while this decisions looks like it might prevent police from directly forcing the person to open the phone, would it be okay for police to use those prints to make a fake finger to unlock the phone, or wave a picture of the mugshot to fool the facial lock? (That works on some phones). These sort of details can be important in a case. Personally, I don't use biometrics for any sort of password; a password you can't change is just a bad idea.
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I'm pretty sure it would all be classified under the same guise of using a persons biometrics (even a copy of such) to unlock a device.

oh and for everyone who didn't RTFA
The order came from the U.S. District Court for the Northern District of California
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Go ahead and show a little love for California... it's been a while.
 
[21CW]killerofall said:
I have my phone set to require a pin to unlock when it is rebooted but face or fingerprint unlock for everything else. That way, all I have to do to keep a law enforcement officer from accessing my phone is take the 2 seconds to reboot it.
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With many phones, you can also just press the power button 3-5 times in a row to disable facial recognition/fingerprints and require a PIN.
 
[21CW]killerofall said:
I have my phone set to require a pin to unlock when it is rebooted but face or fingerprint unlock for everything else. That way, all I have to do to keep a law enforcement officer from accessing my phone is take the 2 seconds to reboot it. It has been 10 years since I have had an encounter with law enforcement (just questioning me at a the scene, but I wasn't evolved at all, so it was fast).
Click to expand...

On an iPhone pin required on reboot. Press a volume and side button to quickly require pin only on 8 and x.
The above 5x sleep/wake button on 5-7 models works.

This is a good ruling. About time.
 
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Good luck convincing Trooper Donald Rummer that, even if it's binding in his state. However, it can be persuasive depending on the circumstances since Oregon and California both reside in Circuit 9. Additionally, a judge in State A is more likely to follow the case law of another state if there's no precedent on point in State A (your state's decisions always come first) and if the decision from the other jurisdiction is based on broadly applicable principles. If, however, the other state's decision rested on reasoning that doesn't apply equally in State A -- for example, if the outcome was dictated by the specific wording of a statute from the other state -- then that decision won't have much effect. The degree of deference one judge will give another judge's decision also depends on how convincing the other judge's reasoning is. If a well-respected state court has an opinion that thoroughly examines a given issue, that opinion will carry more weight than it might otherwise.
 
Bet the appeal has already been filed

For those worried about data on a phone, Set it up to use PIN for normal unlock and if it is unlocked via fingerprint or facial, it runs a secure erase followed by factory reset. "I don't know what happened Your Honor, I just did what Officer Fife told me to do. The phone may have malfunctioned...."
 
Dead Parrot said:
Bet the appeal has already been filed

For those worried about data on a phone, Set it up to use PIN for normal unlock and if it is unlocked via fingerprint or facial, it runs a secure erase followed by factory reset.
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Use the quick lock / PIN features that I and others have mentioned, there is no issue. You need no justification. It's just the law lagging technology and common sense.
 
Need warrant to search phone then crack said device if can't gain easy entry.
If they use bio to lock device then they gave LEOs an easier crack.
 
dreadcthulhu said:
Interesting case here, though it does bring some questions - if someone is arrested, it is routine to take their prints and do a mugshot. So while this decisions looks like it might prevent police from directly forcing the person to open the phone, would it be okay for police to use those prints to make a fake finger to unlock the phone, or wave a picture of the mugshot to fool the facial lock? (That works on some phones). These sort of details can be important in a case. Personally, I don't use biometrics for any sort of password; a password you can't change is just a bad idea.
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Forest for the trees.

It's easy to read something into this that isn't there. The issue at hand isn't really the biometrics or how they may be otherwise obtained in order to unlock the device. The Judge is essentially ruling that it doesn't matter how you want to unlock a cell phone, doing so violates a person's right to not self-incriminate. That is what has to stand up in the courts. methods have nothing really to do with it, and I suspect that even if the phone were unlocked, this judge would have suppressed any evidence obtained from the phone period. Under his reasoning, because people use their phones for so many possible things that the cops can't search it legitimately with the intent to find what they want. I don't think this is going to stand up. They search your home with a warrant and if properly done, it stands up just fine. I think there is no argument that your cell phone has more private and personal information in it than your home does.

But his hearts in the right place, even if I think he's a little obtuse about it all. Of course it could easily be that the cops were just fucking lazy about how they wrote their warrant for the search assuming that they would get what they wanted without question. And in that case, this could stand up just fine while not making a huge change in the overall issue. Properly written, the next one he might sign off on.
 
Long story short - this ruling matches the earlier "can't force pin unlocking" ruling with "biometric unlocking". That's all.
 
This sounded like far too much common sense...... now we know why. /s

sfsuphysics said:
I'm pretty sure it would all be classified under the same guise of using a persons biometrics (even a copy of such) to unlock a device.

oh and for everyone who didn't RTFA

Go ahead and show a little love for California... it's been a while.
Click to expand...
 
So I have been reading the actual court document and it's not exactly saying what some people are making it out as.

https://www.google.com/search?q=5th+amendment&ie=utf-8&oe=utf-8&client=firefox-b-1

So the Judge denied the warrant. He shows more than one reason for this.

1st is a 5th Amendment issue which basically is about proper arrest, or preventing people from being arrested without due process. The cops were basically saying they want to raid the home, seize all kinds of shit, and compel whoever happens to be there at the time to try to unlock the devices present. Which brings up the second issue, the Judge says that the cops know they are after two specific people so there is no reason not to specify who they will compel to unlock the devices, and who's devices they want unlocked as opposed to just whatever they find at the home belonging to whomever.

Under this, I'd say claiming some grand victory is really unwarranted. The cops wrote up a lazy and over broad request for this warrant and the Judge is just reigning them in. I do not think this is at all a victory for those who think cops shouldn't be able to force you to unlock a phone, mostly because I think if this warrant had been more specific, he wouldn't have crushed it.

Of course you are all welcome to go read it yourself and see if you get the same thing I do out of it.
 
Mega6 said:
Long story short - this ruling matches the earlier "can't force pin unlocking" ruling with "biometric unlocking". That's all.
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I'd have to read that other ruling to see, but at the moment, I'm not so sure.
 
I'm still sticking to passcode only. This shit is going to end up in front of the stacked SCOTUS, and since the GOP doesn't give a shit about our privacy, you can guess how that vote is going to go. Don't believe me? Go take a look at the votes on privacy protection bills in the recent passed, and which party consistently voted against it.
 
Yep, there is a reason why I figured out how ot fast pin lock my phone and encrypt all my drives.
 
I agree that providing passwords should be protected by the 5th but........

I'm pretty sure if authorities find a key to a safe while raiding your place with a warrant or a password written on a sticky note they are allowed to use it. I don't think biometrics should be any different. You're just dumb enough to have the key on you at all times.

All said this is one relatively small court. From other stories I have read it seems most judges would disagree with this ruling and hold people in contempt for not providing passwords regularly. Until this decision is reached by a much higher court it won't matter to most of us.
 
As said, this really isn't a Judge saying they can't use biometrics to unlock the devices. It's a Judge saying the warrant was written too broad and invalidating it. As soon as the warrant is rewritten properly all bets are off.
 
lcpiper said:
As said, this really isn't a Judge saying they can't use biometrics to unlock the devices. It's a Judge saying the warrant was written too broad and invalidating it. As soon as the warrant is rewritten properly all bets are off.
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I have no problem with a proper warrant and then forcing someone to unlock a phone. Also I am not cool with where even THAT leads. If I am counterfeit vase maker and they have a warrant for child porn...If I open my phone does that allow them to prosecute me for counterfeiting? Make sense?
 
Gmok Bonecrusha said:
I have no problem with a proper warrant and then forcing someone to unlock a phone. Also I am not cool with where even THAT leads. If I am counterfeit vase maker and they have a warrant for child porn...If I open my phone does that allow them to prosecute me for counterfeiting? Make sense?
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Yes it does. If they find evidence of criminal activity while pursuing other crimes they are indeed subject to prosecution. noting new there at all. People get caught for dumb shit all the time while cops are making stops for minor infractions.

But in this case, the cops asked for a warrant to seize all devices at a residence, and then to force anyone they might find at that residence to help them unlock all of those devices regardless of who's the owner of what. It was stupid, the Judge is right, it was unspecific and over broad. But what the Judge didn't do, is say that it's wrong to force people to unlock their phones when done properly which makes all manner of websites and news articles guilty of making mountains out of molehills.

Now we will have a bunch of people thinking that the cops can't do this when they legally can. And that can lead to people acting all manner of dangerous when confronted with similar circumstances.
 
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