The battle over privacy in the digital age ratcheted up last week. According to a California judge, the Fifth Amendment – the right not to incriminate oneself – protects people from being forced to bypass a smartphone’s encryption via the use of irises, fingerprints, facial recognition, and other similar methods. Obviously, this means a warrant cannot be specifically issued for such purposes, either. The ruling represents a reversal to semi-established practices.
Traditionally, biometric information is not considered to be legal testimonial but physical evidence. This is why, despite Fifth Amendment protections, blood samples can be compelled from a suspect even if that blood sample were to incriminate him. Or, why people can be forced to stand in a police lineup despite the potential to be identified as the criminal.
Following this line of thought, many courts have nullified Fifth Amendment protections when it comes to bypassing biometric restrictions: judges have forced suspects, in court, to unlock their phones by placing their fingers on smartphones’ finger scanners. Or, they have issued warrants to do the same outside of court. However, had the suspects used alphanumeric passwords, the courts would have not even dreamed of compelling access to the devices.
Fingerprints are Not Alway Fingerprints
Let’s say you provided a fingerprint to the police, to be matched to another fingerprint found at a crime scene. You’re not incriminating yourself because you’re not acknowledging, tacitly or otherwise, that you were at the crime scene. Making that link – proving that you were at the crime scene – is the government’s job, which has to discover said print at the scene and to pay someone to determine whether the two prints are a match.
It’s different for a password. The argument goes that producing the password that unlocks a smartphone essentially identifies the device as yours. Hence, the information that is stored there is also yours. Instead of the government proving that the device belongs to you, you’ve done it for them by unlocking the phone, and by doing so you’ve incriminated yourself. That’s a fifth amendment no-no.
For a long time, the courts have generally leaned towards saying that the forced provision of prints to a biometric scanner is more like the traditional “offer your prints” scenario and unlike the “give us your password” scenario.
The judge in California is essentially pointing out that that couldn’t be further from the truth. Especially in the case she ruled upon: The authorities were asking for a warrant that would allow them to search the premises where suspects were residing. The search would extend to the contents of any devices that were there. Furthermore, the authorities wanted to force the suspects to unlock these devices, if any were present, by pressing their fingers against the biometric pads. Plus, they also wanted to include anyone who was at that location at the time the warrant was being served.
Man, talk about a fishing expedition. Anyone? Really? Including the FedEx dude that might be there? Of course, chances are that law enforcement wouldn’t harass the FedEx guy… but then again, who knows? The warrant would have given them the legal authority to do so. And that’s the point: this is overly broad. Warrants should be limited to whomever happens to be a suspect, not whoever happens to be within eyesight of the suspect.
In addition, there is the problem that you’re dealing with two suspects and their devices. Let’s say the warrant is served and the authorities find one phone: if you forcibly unlock the device by having someone’s finger put against it, that action is incriminatory, tantamount to providing a password.
And last but not least, the judge pointed out that previous legal precedent has acknowledged that smartphones are essentially computers with built-in telephony. As such, due to the sheer amount of information that can be found in computers, there are limits to what can be authorized on a warrant when searching through such devices.
This latest case is merely a single shot in the ongoing privacy battle that the digital era has unleashed. But it’s pretty obvious that a trend is beginning to form. Slowly, but ever so slowly (it’s almost glacial, to be honest), the courts are beginning to recognize that the old rules have to be updated for the digital age.
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