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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.
"'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.
