Woman Ordered To Unlock iPhone With Her Fingerprint

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It looks like some people are questioning whether or not it is legal to order someone to unlock an iPhone with their fingerprint. Although the Supreme Court has ruled that police can search a phone as long as they have a warrant and make a person in custody produce fingerprints without a judge's approval, some are saying it is a breach of the 5th Amendment's protection against self-incrimination.

Authorities obtained a search warrant compelling the girlfriend of an alleged Armenian gang member to press her finger against an iPhone that had been seized from a Glendale home. The phone contained Apple's fingerprint identification system for unlocking, and prosecutors wanted access to the data inside it. It marked a rare time that prosecutors have demanded a person provide a fingerprint to open a computer, but experts expect such cases to become more common as cracking digital security becomes a larger part of law enforcement work.
 
This doesn't get covered under the 5th at all.
DocFaustus said:
I am firmly in the camp of this should covered under the 5th.

No different than a safe.
Click to expand...

If your fingerprint can be considered evidence, it isn't covered by the 5th if you are arrested with probable cause.
 
Trepidati0n said:
This doesn't get covered under the 5th at all.


If your fingerprint can be considered evidence, it isn't covered by the 5th if you are arrested with probable cause.
Click to expand...

That's a lot of 'Ifs". So its your position that it isn't the meaning of the 5th amendment, but rather because the type of lock used? So her rights would have been preserved if she used a passcode instead of a finger print?


This case is even worse because:

....the girlfriend of an alleged Armenian gang member.....
.......the search was part of an ongoing probe.
Click to expand...

1) there doesn't seem to a crime yet. 2) it has nothing to do with the owner of the phone

Seems like rights trampling for a fishing expedition.
 
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Use something other than your fingertips. "You want me to press my finger against that sensor to unlock it? Ok which finger and which part of that finger? The correct part? I'm sorry I'm going to have to plead the fifth on that but you're free to try to press whatever part of my body you care to on that. You get 5 tries."
 
DocFaustus said:
I am firmly in the camp of this should covered under the 5th.

No different than a safe.
Click to expand...
A safe with a key is not protected. You can be ordered to provide the key, if there is a physical key it's not protected by the 5th also your knowledge of where the key is isn't protected. If you say you lost the key you can be held in contempt of court(assuming normal legal proceeding of a writ against you). Your fingerprints are not protected under the 5th otherwise fingerprinting wouldn't be legal.

A combination is protected by the 5th. Combination locks if you want your 5th.
 
this was on my cybersecurity midterm. cant force a person to unlock their phone.

if your phone doesn't have any password/fingerprint requirement to unlock, then they can simply open it.
 
We just need a feature that we can setup and customize that wipes the phone if you are compelled to unlock it against your wishes. Maybe an upside down finger + double press or something triggers an upstoppable wipe. Or a wipe PIN. You want me to unlock my phone? Sure. Here you go. OOOOPS. Sorry Bro.
 
Mine requires you to re-enter the code manually after 12 hours of the scanner not being used, the default is 48 hours, so good luck that court order... the timer is running.
 
VIC-20 said:
We just need a feature that we can setup and customize that wipes the phone if you are compelled to unlock it against your wishes. Maybe an upside down finger + double press or something triggers an upstoppable wipe. Or a wipe PIN. You want me to unlock my phone? Sure. Here you go. OOOOPS. Sorry Bro.
Click to expand...
Destruction or obstruction of evidence is usually a more severe crime and easier to prosecute than almost anything you might have on the phone, just ask Martha Stewart.
 
Semantics said:
A safe with a key is not protected. You can be ordered to provide the key, if there is a physical key it's not protected by the 5th also your knowledge of where the key is isn't protected. If you say you lost the key you can be held in contempt of court(assuming normal legal proceeding of a writ against you). Your fingerprints are not protected under the 5th otherwise fingerprinting wouldn't be legal.

A combination is protected by the 5th. Combination locks if you want your 5th.
Click to expand...

I came here to say exactly this. If you have a safe that requires keys or bio-metrics to get in they can force you to either scan in or provide the key. Doing the same for a phone would not be considered any different. If you are worried about this with your phone turn off the fingerprint option and use a long code.
 
While I think the 5th should cover this, the courts have indicated it doesn't. Until that changes, protect yourself and use a passcode to lock your phone. You can still use the thumb reader for apps within your phone if you want to. Alternatively, use your toe to unlock it. That way, by the time they've tested all 10 fingers, the phone will be erased :D
 
EchtoGammut said:
Destruction or obstruction of evidence is usually a more severe crime and easier to prosecute than almost anything you might have on the phone, just ask Martha Stewart.
Click to expand...

And good luck proving beyond a shadow of a doubt you destroyed the phone by touching it. Phones do brick sometimes and law enforcement techs sometimes make mistakes. Triggering a self destruct by a special pin/swipe/finger scan wouldn't be nearly as guilty looking as burning papers, or smashing something.
 
She probably has prints on record. I bet they could be used to open the iphone without her participating. Which is why you should skip using fingerprints and use a real password.
 
That's why I unlock my phone with my privates. Only downside is that this causes other legal trouble if you're slapping your phone repeatedly trying to get it to unlock in public.

Sticking with a PIN might be a better way to go.
 
Finger printers are handy to unlock your phone. Let's see how this plays out.
I had read an article (no clue where) a while back that talked about this. Passwords are thoughts where finger prints are physical. This made the interpretation of existing laws very grey.
(I'm not a lawyer and don't know what I'm talking about.)
 
Shouldn't be using a phone with a number traceable back to you for nefarious shit anyway, why would you ever store your print in it?

Kids these days...
 
EchtoGammut said:
Mine requires you to re-enter the code manually after 12 hours of the scanner not being used, the default is 48 hours, so good luck that court order... the timer is running.
Click to expand...

Also, if the phone looses it's charge and completely powers down (or if its simply rebooted), then the only way to unlock it would be the PIN code.

Good luck with that, law enforcement.
 
Semantics said:
A safe with a key is not protected. You can be ordered to provide the key, if there is a physical key it's not protected by the 5th also your knowledge of where the key is isn't protected. If you say you lost the key you can be held in contempt of court(assuming normal legal proceeding of a writ against you).
Click to expand...

Why is a memory of the key's location different from a memory of a passcode? Also, how can they prove you haven't actually lost it or flushed it down the toilet two days ago?
 
Meeho said:
Why is a memory of the key's location different from a memory of a passcode? Also, how can they prove you haven't actually lost it or flushed it down the toilet two days ago?
Click to expand...
It's because you're not testifying against yourself it doesn't actually require you to speak just act, the court can compel you to act without it running into 5th admend issues. If the court can compel you to give up physical samples, show up at a place during a certain time etc it's all actions not testimony. The 5th protects you in testimony after all you're not incriminating yourself it's your possessions that are incriminating you. In other-words don't keep anything that incriminates you in a physical object.

There is a slight difference as well, you're providing a key which is not incriminating you, you can use the 5th to protect you from production of something that incriminates. The typical example is "provide us the murder weapon" obviously that would make you admit to the murder by default thus it's protected but provide us with the key to the door which we believe the murder weapon is behind would not.
 
Semantics said:
A safe with a key is not protected. You can be ordered to provide the key, if there is a physical key it's not protected by the 5th also your knowledge of where the key is isn't protected. If you say you lost the key you can be held in contempt of court(assuming normal legal proceeding of a writ against you). Your fingerprints are not protected under the 5th otherwise fingerprinting wouldn't be legal.

A combination is protected by the 5th. Combination locks if you want your 5th.
Click to expand...

I have never seen a safe that was key only. The best I have seen is a key that locks the combination wheel.... Technically making it key + combo I guess. I should have been more clear I guess. Even with that ambiguity I am not comfortable with disclosing the location of a key.

Beyond the key vs. combo vs. bio-metric lock thing, I see this article as generally troubling.

The thing is, I consider a phone to be a very personal item because of its ability to access so many facets of modern life. Personally I believe phones should be off limits to law enforcement because they are too easy to abused. Hell look at the case in question... They don't care about her, as she is not the subject of an investigation, her boyfriend is. There is no case against her or the guy yet, but they are compelling her to give up access to what may or may not be evidence. And she cannot defend against it because there is no case protecting her. More strange... the phone wasn't even in her possession, they picked it up at another house.

So say you have a friend. And say your friend is a suspect in the crime of ____________ (murder, shoplifting, jaywalking), but the cops have no evidence. At what point can they start confiscating you and all of your friends phones and compel you to open them to try to make their case?
 
DocFaustus said:
I am firmly in the camp of this should covered under the 5th.

No different than a safe.
Click to expand...
It could be that authorities really didn't care specifically about evidence obtained via the device as it pertained to a legal case against the person they're forcing to unlock, but to everyone else that it could incriminate, and the 5th amendment does not protect you against that.
 
sfsuphysics said:
It could be that authorities really didn't care specifically about evidence obtained via the device as it pertained to a legal case against the person they're forcing to unlock, but to everyone else that it could incriminate, and the 5th amendment does not protect you against that.
Click to expand...
In that case, seems like they'd have to give her immunity from prosecution for anything that was on the device and, if she's married, immunity for her spouse too.
 
VMaxx said:
She probably has prints on record. I bet they could be used to open the iphone without her participating.
Click to expand...

Yes, they could, but then the resulting evidence needs to be presented in a court of law. Is it legal to unlock a phone that way? Have you seen any case in which it was done that way?
 
Honestly we just need to get better about not being lazy. Encrypted with password/passcode and autowipe after 3 tries.
 
evilsofa said:
Yes, they could, but then the resulting evidence needs to be presented in a court of law. Is it legal to unlock a phone that way? Have you seen any case in which it was done that way?
Click to expand...
Yes all the prosecutor needs to do is set the case against the phone, not the owner, which is legal now of days making the owner irrelevant, because of extension of rico laws. All you'd have to do is claim that the phone was used in a crime. Not saying there is a case like that but saying that's a way to do it.
 
DocFaustus said:
<snip>The thing is, I consider a phone to be a very personal item because of its ability to access so many facets of modern life. Personally I believe phones should be off limits to law enforcement because they are too easy to abused. Hell look at the case in question... They don't care about her, as she is not the subject of an investigation, her boyfriend is. There is no case against her or the guy yet, but they are compelling her to give up access to what may or may not be evidence. And she cannot defend against it because there is no case protecting her. More strange... the phone wasn't even in her possession, they picked it up at another house.

So say you have a friend. And say your friend is a suspect in the crime of ____________ (murder, shoplifting, jaywalking), but the cops have no evidence. At what point can they start confiscating you and all of your friends phones and compel you to open them to try to make their case?
Click to expand...

A persons residence also normally contains tons of personal information and it's well established that cops can search a house if they have a warrant or in specific situations. The very purpose of search warrants is to override a persons legal right to privacy which is different than forcing you to testify against yourself.

In the situation you presented they wouldn't be able to search your phone without a warrant which would require some evidence that your friend was involved and that your phone likely contains evidence.

I don't think that cops should be able to search your phone without a warrant and I don't like how some places allow cops to get a warrant over the phone(basically a rubber stamp process) but as long as they follow the proper procedure to get a warrant I don't see why they shouldn't be able to compel someone to give access to evidence. It's not like they're being forced to create evidence in the first place, they're just not being allowed to keep it hidden.
 
gunbust3r said:
Don't you need a PIN as well if you have not unlocked the iPhone in 48 hours or so?
Click to expand...

According to Apple, that is correct. These are the situations when Touch ID requires a passcode or Apple ID:
  • If you've just restarted your device
  • If your fingerprint isn't recognized five times in a row
  • If you haven't unlocked your device in more than 48 hours
  • If you've just enrolled or deleted fingerprints
  • If you're trying to open Touch ID & Passcode in the Settings menu
  • If Require Password is set to Immediately under Settings > General > Restrictions
 
Here is a thought experiment for all the lawyer/judge types out there... So, you can't be forced to enter a passcode if the contents may incriminate you... But you can be forced to produce a key even if the contents may incriminate you... What's the difference? Simple, the police can take (steal) the key from you whereas a pass code they can not.
All this is a case of bastardization of the law (thanks to lawyers and judges). The truth is that if the law's intent was followed, you could not be forced to hand over anything that could be used to incriminate yourself ( Act of Production Doctrine). It doesn't matter if that material is behind a combination lock digital cypher or physical key. The fact they ignore the protection for physical keys (or fingerprints) is merely a skirting of protections and a violation of law.
 
Ebernanut said:
<snip>...I don't think that cops should be able to search your phone without a warrant and I don't like how some places allow cops to get a warrant over the phone(basically a rubber stamp process) but as long as they follow the proper procedure to get a warrant I don't see why they shouldn't be able to compel someone to give access to evidence. It's not like they're being forced to create evidence in the first place, they're just not being allowed to keep it hidden.
Click to expand...

Here is your rubber stamp: U.S. high court approves rule change to expand FBI hacking power
 
PhotoBobBarker said:
Here is a thought experiment for all the lawyer/judge types out there... So, you can't be forced to enter a passcode if the contents may incriminate you... But you can be forced to produce a key even if the contents may incriminate you... What's the difference? Simple, the police can take (steal) the key from you whereas a pass code they can not.
All this is a case of bastardization of the law (thanks to lawyers and judges). The truth is that if the law's intent was followed, you could not be forced to hand over anything that could be used to incriminate yourself ( Act of Production Doctrine). It doesn't matter if that material is behind a combination lock digital cypher or physical key. The fact they ignore the protection for physical keys (or fingerprints) is merely a skirting of protections and a violation of law.
Click to expand...

"The Fifth Amendment right against self-incrimination does not extend to the collection of DNA or fingerprints in connection with a criminal case. The Supreme Court has held the privilege extends only to communicative evidence, and DNA and fingerprint evidence is considered non-testimonial." (source)

If you have the passcode physically written down somewhere and they find it, they're in the clear of the 5th, because they got the passcode without communicating with you. Obtaining access to your house or storage locker or whatever you've locked with a physical key can usually be done trivially without even needing the physical key, but they can usually obtain your physical key without communicating with you.

A physical location that can only be entered with a physical key is probably impossible with today's technologies, so that legal situation never comes up. You can theorize about that legal situation all you want but I'd like to hear a description of such a location first, as that would be a lot more interesting.

The relevant phrase in the 5th amendment is "nor shall be compelled in any criminal case to be a witness against himself", by the way. Your idea that you "could not be forced to hand over anything that could be used to incriminate yourself" means that everything that's yours is inadmissible and nobody would ever have any evidence against them. That's not going to work.
 
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KarsusTG said:
Honestly we just need to get better about not being lazy. Encrypted with password/passcode and autowipe after 3 tries.
Click to expand...

You obviously don't have kids... You just have to blink and they'll manage to grab your phone and wipe the device accidentally.


Honestly I think an increasing time delay is better. Each failed attempt doubles the wait time until you can retry, then wipes after say 20 or so failed attempts. Depending on the timer it could day many hours just to fail 20 times.
 
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Ebernanut said:
A persons residence also normally contains tons of personal information and it's well established that cops can search a house if they have a warrant or in specific situations. The very purpose of search warrants is to override a persons legal right to privacy which is different than forcing you to testify against yourself.

In the situation you presented they wouldn't be able to search your phone without a warrant which would require some evidence that your friend was involved and that your phone likely contains evidence.

I don't think that cops should be able to search your phone without a warrant and I don't like how some places allow cops to get a warrant over the phone(basically a rubber stamp process) but as long as they follow the proper procedure to get a warrant I don't see why they shouldn't be able to compel someone to give access to evidence. It's not like they're being forced to create evidence in the first place, they're just not being allowed to keep it hidden.
Click to expand...
They can also override 5th amendment protections by granting immunity from prosecution. There isn't any 5th amendment protection extending to the drug dealer from the girlfriend's ownership of the phone.
 
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