Device Detects Drug Use Through Fingerprints, Raising A Host Of Constitutional Questions
from the defendant-has-indicated-gov't-will-receive-'two-fingers-while-he's-s dept
If this tech becomes a routine part of law enforcement loadouts, judicial Fourth and Fifth Amendment findings are going to be upended. Or, at least, they should be. I guess citizens will just have to see how this all shakes out.
A raft of sensitive new fingerprint-analysis techniques is proving to be a potentially powerful, and in some cases worrying, new avenue for extracting intimate personal information—including what drugs a person has used.
[...]
The new methods use biometrics to analyze biochemical traces in sweat found along the ridges of a fingerprint. And those trace chemicals can quickly reveal whether you have ingested cocaine, opiates, marijuana, or other drugs. One novel, noninvasive forensic technique developed by researchers at the University of Surrey in the United Kingdom can detect cocaine and opiate use from a fingerprint in as little as 30 seconds. The team collected 160 fingerprint samples from 16 individuals at a drug-treatment center who had used cocaine within the past 24 hours—confirmed by saliva testing—along with 80 samples from non-users. The assay—which was so sensitive that it could still detect trace amounts of cocaine after subjects washed their hands with soap—correctly identified 99 percent of the users, and gave false positive results for just 2.5 percent of the nonusers, according to a paper published in Clinical Chemistry.
Let's discuss the phrase "non-invasive." It was relatively non-invasive when fingerprints were simply used to identify people. (That science isn't exactly settled, but we'll set that aside for now.) When smartphones and other devices used fingerprint scanners for ID, the "non-invasive" application of fingerprints was no longer non-invasive. An identifying mark, possessing no Fifth Amendment protection, gave law enforcement and prosecutors the option of using something deemed "non-testimonial" to obtain plenty of evidence to be used against the fingerprinted.
This opens up a whole new Constitutional Pandora's Box by giving officers the potential to apply fingerprints during traffic stops to see if they can't generate enough probable cause to perform a warrantless search of the car and everyone in it. It's generally criminal to possess drugs. Evidence of ingested drugs means suspects possessed them at some point in time, but evidence of drug use is generally only useful in driving under the influence cases. That's in terms of prosecutions, though. For roadside searches -- where officers so very frequently "smell marijuana" -- evidence of drug use is a free pass for warrantless searches.
That's just the Fourth Amendment side. The Fifth Amendment side is its own animal. Evidence obtained through fingerprints would seemingly make the production of fingerprints subject to Fifth Amendment protections. It should at least rise to the level of blood draws and breath tests, even though this is far more intrusive (in terms of evidence obtained) than tech normally deployed at DUI checkpoints. Blood draws often require warrants. Breath tests, depending on surrounding circumstances, aren't nearly as settled, with courts often finding obtaining carbon dioxide from breathing humans to be minimally testimonial.
As Scott Greenfield points out, the first tests of constitutionality will occur at street level. Cops will deploy the tech, hoping to good faith their way past constitutional challenges.
Precedent holds that the police are authorized to seize people’s fingerprints upon arrest, as the Fifth Amendment does not apply to physical characteristics. But the rubric is “fingerprints can be seized” based on their limited utility as physical characteristics used for identification purposes.
If they should be used for entirely different purposes, for the ascertainment of whether a person ingested drugs, then the rationale allowing the seizure of prints under the Fifth Amendment no longer applies. It certainly won’t be in the cops’ best interests to draw this distinction, to limit their use of prints to the purpose for which they’re allowed and to demonstrate constitutional restraint by not exceeding that purpose.
This means everything will get much worse for drivers and other recipients of law enforcement attention in the short-term. When the challenges to searches and seizures filter their way up through the court system, things might improve. But it won't happen rapidly and any judges leaning towards redefining the scope of fingerprint use will face strong government challenges.
It will probably be argued evidence of drug use obtained through these devices is no different than a cop catching a whiff of marijuana. On one hand, no cop could credibly claim to be able to detect drug use simply by touching someone's fingers. On the other hand, the reasonable reliability of the tech makes challenges more difficult than arguing against an officer's claim they smelled drugs during the traffic stop. The key may be predicating a challenge on the fact that the device actually tests sweat, not fingerprints, making it an issue of bodily fluids again and (slightly) raising the bar for law enforcement.
This news isn't disturbing for what it is. The obvious initial application is in workplaces, where random drug tests are standard policies for many companies. That tech advancements would progress to this point -- a 10-minute test that requires only the momentary placement of a finger on a test strip -- was inevitable. It's what comes after that will be significant. Courts have often cut law enforcement a lot of slack and tend to lag far behind tech developments and their implications on Constitutional rights. A new way to obtain evidence using something courts generally don't consider to be testimonial is going to disrupt the Constitution. Hopefully, the courts will recognize the distinction between identification and evidence and rule appropriately.
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Filed Under: 4th amendment, 5th amendment, biometrics, drugs, fingerprints, forensics, law enforcement
Reader Comments
The First Word
“Yes, let's talk about the term non-invasive. A term used, as far as I can tell, solely by Dr Bailey (PhD in Electrical Engineering, in case you were wondering) in the context of a new medical diagnostic technique. In the field (and by this I mean literally every scientific field from medicine to biology to god-damn physics), non-invasive refers to any technique which does not require insertion of an instrument into the sample space.
In medicine (where it is by far most commonly used) this would refer to any diagnostic test, surgery, or other treatment which does not require insertion of an instrument inside the patient's body. Every single piece of context in your linked sources clearly shows that she was discussing their new medical diagnostic technique, which is clearly non-invasive. Period. End of story.
Either you didn't know this, in which case the lack of even a basic attempt at background research is, frankly, appalling. Or you did, in which case blatantly taking quotes completely out of context might actually be worse.
Either way, there are some serious journalistic ethics issues here.
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Yes, let's talk about the term non-invasive. A term used, as far as I can tell, solely by Dr Bailey (PhD in Electrical Engineering, in case you were wondering) in the context of a new medical diagnostic technique. In the field (and by this I mean literally every scientific field from medicine to biology to god-damn physics), non-invasive refers to any technique which does not require insertion of an instrument into the sample space.
In medicine (where it is by far most commonly used) this would refer to any diagnostic test, surgery, or other treatment which does not require insertion of an instrument inside the patient's body. Every single piece of context in your linked sources clearly shows that she was discussing their new medical diagnostic technique, which is clearly non-invasive. Period. End of story.
Either you didn't know this, in which case the lack of even a basic attempt at background research is, frankly, appalling. Or you did, in which case blatantly taking quotes completely out of context might actually be worse.
Either way, there are some serious journalistic ethics issues here.
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Re: Invasion of privacy, not invasion of object
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Re:
Word games.
A more relevant case would be police use of thermal imaging cameras to scan peoples' homes for grow-op lamps.
The Supreme Court ruled that no, they can't do that.
Even if we accept your surgery definition of "invasive" - as opposed to an invasion of privacy - the court would appear to disagree with you.
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Re:
Reading comprehension fail. The points in this piece as they pertain to the word "noninvasive" aren't at all about the medical meaning. Quite the opposite, it's entirely predicated on that correct meaning. Here, it's just a rhetorical reuse of the word in terms of its implications in law and civil liberties, contrasting the very different implications of that noninvasiveness in medical vs legal contexts -- to wit, the ability for officers to "search" an individual for evidence of criminal behavior (from something every person leaves behind every minute of their lives) without any prior suspicion. It's the noninvasive nature (medical) of the diagnostic technique that creates the great potential for invasive (legal) abuse by officers.
Ethically, it's obvious you're attempting to discredit very important discussion of civil liberty concerns by denigrating the piece and the author via a bogus use of pedantic "concerns" that are entirely deceptive as to the point of the piece.
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Re:
I would rather talk about the term false positive.
2.5% may not sound like much. Unless your test result happens to fall into the false positives and your life and career are destroyed by overzealous cops who were kind enough not to just shoot you on the spot -- uh, because of um, something.
We're talking about an extremely sensitive test here. What if you test positive because your fingerprint ridges have some illicit drug that you happened to pick up by merely handling currency.
Oh, wait. Only criminals use actual cash which is anonymous. Law abiding citizens have no need to be anonymous and would know that all good people do not use cash so that their entire life is open to inspection to the government. For their own good.
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2.5% is a horrible false positive rate (unless you're a cop). Out of a company of 1000, you are talking about 25 being taken to task for improper reasons. And that is per iteration of testing.
Monthly testing? Good luck keeping folks on after the first year of drug-testing RIFs.
Of course, that's just the innocent...
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Re: Re:
> may not sound like much. Unless your test result happens
> to fall into the false positives and your life and career
> are destroyed
And can this test distinguish between drug residue on the fingers because of the person's drug use and drug residue on the fingers because the person happened to touch something (a doorknob, a steering wheel, a restaurant chair) that had drug residue on it?
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Re: Re: Re:
It does NOT distinguish how the chemical got into the sample. Either through perspiration or adhesion from a surface you touched.
TFA gave me the impression the test is sensitive.
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Citizen: "It was probably the bagel I had."
Cop: "...and cocaine, marijuana, steroids, other drugs, and also you're pregnant."
Citizen: "It was an everything bagel."
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I would not suggest to use a fingerprint test like this for conviction; use a proper blood analysis instead.
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I don't suppose that anyone has thought that our money, ie dollar bills, has been tested and found traces of cocaine on a large percentage of them.
http://www.cnn.com/2009/HEALTH/08/14/cocaine.traces.money/
So now handling money will turn you into a drug user.
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let's not forget that CURRENT field tests are Notoriously Unreliable. And they want a test that just more or less dusts prints?
Methinks the police should be the FIRST people to use this, from the top down, and convicted as they will on other citizens.
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Are these tests verified outside of law enforcement?
Given we've established the police are eager for tests that provide false positives and are accepted in court as evidence of crime (and justification to put warm bodies into prison) has anyone not allied with law enforcement submitted reports as to the accuracy and veracity of these tests?
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According to CNN:
I think those field tests will be quite reliable. From the officers' point of view.
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Drug use != criminal?
If somebody has 3 pounds of cocaine in the trunk of his car please arrest him. If somebody has used drugs and has a small amount on him. Give him a stern warning and a flyer for a rehab center.
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Re: Drug use != criminal?
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Re: Drug use != criminal?
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2.5% is a pretty big error rate.
So like, if you have a group of 50 people in a room, yeah, maybe 5 of them will turn out to be drug users. But there's a good chance you'll pick up a 6th who hasn't so much as used an asthma inhaler.
And that 2.5% was testing under controlled conditions; what happens in the real world where people have touched all sorts of things?
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Re: 2.5% is a pretty big error rate.
The cops get to search a lot more vehicles, like every vehicle they stop.
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Re: Re: 2.5% is a pretty big error rate.
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Re: Re: Re: 2.5% is a pretty big error rate.
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Re: Re: Re: 2.5% is a pretty big error rate.
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Re: 2.5% is a pretty big error rate.
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Another can of worms...
Is there an expectation of privacy if you leave a fingerprint in a public place rather than in a private home? Could a cop go undercover at a restaurant favored by a suspect to gather fingerprints for chemical analysis?
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Re: Another can of worms...
> fingerprint in a public place rather than in a private
> home?
No.
> Could a cop go undercover at a restaurant favored by a
> suspect to gather fingerprints for chemical analysis?
Yes.
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Breathalyzer
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Hillarious In Court
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Who have blindly given away our Rights .........
In the facially of Security ....................
Now Question our Masters Overreach ? .................
Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha Ha.................................................................................................. ..........................
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Re:
Gave away their rights according to you.
How does that happen one might ask, but then they realize this is the town troll and it is a waste of time.
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The eye of Sauron.......
To make sure your shit don't stink before it flows into the
Shithole of Government OverWatch
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Finger Prints
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Re: Finger Prints
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Actually, raising worries only for drug users.
This is EXTERNAL examination, so completely without the obstacles that Techdirt hopes for.
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Re: Actually, raising worries only for drug users.
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Fingerprints during traffic stops
Citation needed. Has a court found that police can compel fingerprints during traffic stops? They can certainly do it after upon arrest, but they can't arrest without probable cause, and refusing to provide a fingerprint wouldn't be probable cause (unless some law makes that a crime in and of itself, as with breath samples).
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Re: Fingerprints during traffic stops
Although many retail establishments require the collection of fingerprints when conducting certain financial transactons, for some reason police don't - yet - when signing for a traffic ticket.
Maybe that will soon change. The border police have for decades collected fingerprints from people they stop, and this is their primary method of instant identification, since illegal aliens typically don't carry any sort of identity cards for obvious reasons.
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Drug touching != Drug using
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iTS A WONDER..
One that CANT BE administered onsite..
You are telling me that they CAN/will soon have a device that can Check for MOST drugs, from the oil Secreted from our skin?
AT any level..Like a breathalyzer..for the skin.
1. it has to have an oil base..(dont eat the cookies)
2. Cause you tested for something, does NOT MEAN it was recent.. And that a friend NEAR them, DID IT...not them..
3. instant test?? not in MOST formats, unless you can test INSIDE THE MOUTH, or blood test..
IF they aint going to FIX the problem, WHy put people in jail..
The Rule says that IF you did not create a traffic infraction, THEY CANT STOP YOU...Test you or anything else..
How many false positives BEFORE they give it up??
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Why do they need such a device?
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Define: Invasive
So the AC on the first word is a bit of a douchebag.
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The sample size was n=16. 99 percent of 16 is 16*.99=15.84. They failed basic math.
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