Pennsylvania Supreme Court Says Compelled Password Production Violates The Fifth Amendment

from the so-it's-back-to-beating-arrestees-with-phonebooks-I-guess dept

The Fifth Amendment prevents compelled production of passwords, the top court in Pennsylvania has ruled. (h/t ACLU) It joins a handful of other state courts finding passwords to be testimonial, including Indiana, Illinois, and Florida. Unfortunately, there's no SCOTUS opinion uniting the states, so Fifth Amendment coverage remains spotty.

Securing rights remains the job of unsympathetic defendants. The state's child porn prosecution is likely to stall out with its main supply of potential evidence inaccessible. Despite the defendant basically admitting the computer law enforcement seized contained other child porn images ("we both know what's on there") and that he alone used the computer and could decrypt it, the court says [PDF] the state's foregone conclusion assertions aren't enough to render the Fifth Amendment useless.

That was the state's argument: the seized computer likely has child porn on it, based on the defendant's admissions and the investigative work that tracked porn downloads/uploads to his address. The state's Superior Court found the government's arguments persuasive, but only by drastically narrowing the scope of its focus.

Applying the foregone conclusion exception, the Superior Court, contrary to the trial court, focused on the password itself, and reasoned that the Commonwealth established the computer could not be opened without the password, that the computer belonged to Appellant and the password was in his possession, and that this information was “self-authenticating” ― i.e., if the computer was accessible upon entry of the password, the password was authentic.

While the government would like the court to believe that the compelled production of passwords is like demanding a key to a locked box, the court disagrees. There is Supreme Court precedent that guides this analysis, even if the Supreme Court has yet to rule on compelled password production.

First, the Supreme Court has made, and continues to make, a distinction between physical production and testimonial production. As made clear by the Court, where the government compels a physical act, such production is not testimonial, and the privilege is not recognized. See Holt; Doe II. Second, an act of production, however, may be testimonial when the act expresses some explicit or implicit statement of fact that certain materials exist, are in the defendant’s custody or control, or are authentic. See Fisher; Hubbell. The crux of whether an act of production is testimonial is whether the government compels the defendant to use the “contents of his own mind” in explicitly or implicitly communicating a fact.

Fifth Amendment protections may be limited in cases like these, but they're not nonexistent. The government has an evidentiary burden to meet before it can demand production of passwords.

[U]nder a foregone conclusion analysis, the Supreme Court has reasoned that an act of production does not render communication testimonial where the facts conveyed already are known to the government such that the evidence sought “adds little or nothing to the sum total of the Government’s information.” Fisher, 425 U.S. at 411. Thus, what is otherwise testimonial in nature is rendered nontestimonial, as the facts sought to be compelled are a foregone conclusion. As described above, for the exception to apply, the government must establish its knowledge of: (1) the existence of the evidence demanded; (2) the possession or control of the evidence by the defendant; and (3) the authenticity of the evidence.

The state simply doesn't have it here. It has a computer that, if unlocked by a compelled password, would become "self-authenticating." The defendant's assertions about his control of the computer isn't enough to clear these hurdles. Most of the state's "foregone conclusion" about available evidence (with the exception of a single, verified child porn image transferred from the defendant's IP address to investigators during the investigation) is nothing more than a strong hunch. That's not enough.

In sum, because the Commonwealth has failed to establish that its search is limited to the single previously identified file, and has not asserted that it is a foregone conclusion as to the existence of additional files that may be on the computer, which would be accessible to the Commonwealth upon Appellant’s compelled disclosure of the password, we find the Commonwealth has not satisfied the foregone conclusion exception.

This ruling does not go so far as to cover compelled production of biometric features, however.

Because we are dealing with a motion to require an individual to recall and disclose a memorized password to a computer, in essence, revealing the contents of one’s own mind, we need not address the related, but distinct, area involving biometric features like fingerprints, thumbprints, iris scanning, and facial recognition, or whether the foregone conclusion rationale would be appropriate in these circumstances.

But the court hints it would likely find in the state's favor if the decryption key was a fingerprint.

[N]ot only are these communications not before our Court, it is the United States Supreme Court that long ago has created the dichotomy between physical and mental communication.

Also of note is this: supporting briefs filed on behalf of the government by other state governments appear to contain threats of anti-encryption legislation if courts continue to allow the Constitution to protect defendants from self-incrimination.

In a joint amicus brief in support of the Commonwealth, various states provide an interesting history of modern encryption, press the troubling consequences of Appellant’s position ― including the altering of the balance of power, rendering law enforcement incapable of accessing large amounts of relevant evidence ― and warn that adopting Appellant’s position could result in less privacy, not more, in the form of draconian anti-privacy legislation.

There's nothing quite like multiple state governments claiming they'll strip away privacy protections if they can't ignore Constitutional protections. When it comes to weighing the interests of all involved stakeholders, it appears the government's interests weigh the most.

Filed Under: 5th amendment, compelled speech, passwords, pennsylvania, self-incrimination

Appeals Court Says It's OK For Cops To Destroy Someone Else's House To Apprehend A Criminal Suspect

from the maybe-just-use-fire-to-flush-them-out-I-guess dept

Three years ago, police in Colorado destroyed Leo Lech's home to arrest a person suspected only of shoplifting from a nearby Walmart when the house destruction began. Shoplifting suspect Robert Seacat abandoned his vehicle and hid in Lech's house. When police entered to arrest him, Seacat shot at them five times.

The Greenwood PD escalated its response. It brought in a Bearcat to ram a hole into the side of Lech's house. Officers used explosives to punch multiple holes in the sides of the house, hoping to locate the hidden suspect. The PD repeatedly fired teargas grenades into what was left of the house. Nineteen hours later, officers arrested Seacat, discovering two handguns and methamphetamines in the backpack he was carrying.

When Leo Lech was finally allowed to return to his home, he discovered he no longer had one.

The city gave Lech $5,000 for "temporary living arrangements," but offered no other assistance. Shortly after that, the city condemned Lech's house and told him he'd need to build a new holding pond in addition to a new house. Lech sued, alleging (among other things) that the PD's destruction of his house to catch a criminal suspect violated the Takings Clause. The district court disagreed, dismissing all these claims with prejudice.

Lech appealed but the Tenth Circuit Appeals Court has upheld [PDF] the lower court's decision. The court says no one's responsible for the mess the Greenwood PD created when it decided a citizen's house wasn't going to stand between officers and the man they were trying to arrest.

Lech argued the destruction of his house was an illegal taking by the government -- a violation of the Fifth Amendment. The government argued it was not a "taking." The destruction of Lech's house occurred during the course of police activity, therefore nothing was "taken" -- at least not in the "eminent domain" sense. In other words, the government never took Lech's house away from him. He was free to have it when the police were done with it, even if officers had rendered it uninhabitable.

The appeals court aligns with the district court, saying there's a bright line between "taking" and "destroying," even if it's the government doing the destroying. Lech argued the (temporary) seizure of his house was for "public use," in the sense that the pursuit of a criminal is a service law enforcement provides to the public. The appeals court isn't willing to stretch the definition of "public use" quite that far, even if it means the government can destroy someone's home without having to worry about compensating them for the destruction.

[T]he Lechs urge us to disregard the distinction between the police power and the power of eminent domain in resolving this appeal. In support, they point out that “the Takings Clause ‘was designed to bar [g]overnment from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’” Aplt. Br. 13 (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)). And they argue that upholding the district court’s summary-judgment ruling would do just that: it would force the Lechs to bear alone the cost of actions the defendants undertook in an effort to “apprehend[] a criminal suspect”—actions that were clearly “for the benefit of the public” as a whole.

We do not disagree that the defendants’ actions benefited the public. But as the Court explained in Mugler, when the state acts to preserve the “safety of the public,” the state “is not, and, consistent[] with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate [affected property owners] for pecuniary losses they may sustain” in the process. Thus, “[a]s unfair as it may seem,” the Takings Clause simply “does not entitle all aggrieved owners to recompense.”

Accordingly, we reject the Lechs’ first broad challenge to the district court’s ruling and hold that when the state acts pursuant to its police power, rather than the power of eminent domain, its actions do not constitute a taking for purposes of the Takings Clause. And we further hold that this distinction remains dispositive in cases that, like this one, involve the direct physical appropriation or invasion of private property.

The appeals court says destroying a house is just an unfortunate byproduct of law enforcement. While it does acknowledge this narrow reading of the Takings Clause won't encourage officers to be more careful with other people's property when apprehending suspects, it says this won't prevent officers from being held individually responsible for "willfully or wantonly" destroying property. But if this the bar the Tenth Circuit is setting, it will be almost impossible for plaintiffs to meet it without evidence officers were more destructive than they needed to be to effect an arrest.

The law provides few protections for homeowners whose property comes between criminals and the officers pursuing them. While this is the end of the line for Lech's Fifth Amendment claims, he may still win enough from his surviving claims (negligence, intentional infliction of emotional distress, property deprivation under state law) to recover from his government-inflicted loss. Then again, it's going to be hard to prove officers did anything to Lech directly. If property destruction is just an unfortunate side effect of capturing criminal suspects, the lower court will likely side with the destroyers.

Filed Under: 10th circuit, 5th amendment, greenwood pd, leo lech, police, property destruction, robert seacat, takings clause

Magistrate Judge Rejects Govt's Attempt To Use A Stored Records Law To Seek Future Cell Site Location Info

from the thanks-for-the-warrant-but-you're-still-doing-it-wrong dept

Someone's keeping the government in line in Idaho. Federal judge Ronald E. Bush isn't just skimming warrant applications and signing them. He's actually reading them and applying the law. This probably isn't endearing him to federal agents.

In May of this year, he told the government that forcing a suspect to unlock a phone using swipe pattern was unconstitutional. He told the government the same thing a couple of months later when it was attempting to get a court order compelling fingerprint production. One of these was rolled back by the district court, but it appears warrant applications in Ronald Bush's court are receiving more scrutiny than they are elsewhere.

Judge Bush's latest pushback deals with cell site location info. This information, collected by cell service providers, used to be acquired without a warrant. Up until the Supreme Court's 2018 decision, CSLI was considered a third party record that could be obtained with only a subpoena. Historical location data now needs warrants, hence these warrant applications -- one of which Judge Bush has rejected [PDf}.

Bush says the Stored Communications Act (SCA) warrant is fine as long as the government sticks to, you know, stored communications. But the government wants to do more under this same authority. Since the government doesn't appear to know exactly where its suspect is located, it wants to use the SCA to track the location of the suspect's phone as location records are generated.

The second application, however, seeks not historical location information or other historical subscriber data, but rather seeks thirty days of prospective “location information” regarding the target telephone. In other words, the Government seeks a warrant under the Stored Communications Act to permit the Government to gather future information, which the application defines to include “all available E-911 Phase II data, GPS data, latitude-longitude data, and other precise location information, as well as data about which ‘cell towers’ (i.e., antenna towers covering specific geographic areas) and ‘sectors’ (i.e., faces of the towers) received a radio signal from the cellular telephone.” Such location information is sometimes referred to as “real-time cell-site location information” or “real-time CSLI.”

As the judge points out, the SCA does not cover records that haven't been created yet, much less "stored."

The Court will deny the second application because the SCA does not authorize issuance of a warrant to allow the Government to collect prospective location information.

There is an option the government can use to collect real time CSLI. Under Rule 41, the government can obtain this data, deploying the warrant to collect the info as it comes in. But the government doesn't want to use its Rule 41 powers because they're a bit more limited in scenarios like these. SCA warrants can compel production from anywhere. Rule 41 allows tracking of an individual's movements via a device (or a third party) but the "device" must be installed in the district. Since the government doesn't actually know where the targeted phone is located, it cannot meet the venue requirements needed to secure judicial permission.

The government's argument is basically, "If you don't let us do this the wrong way, there's a possibility we won't be able to do it at all."

The Government notes that “if the Court declines to issue the warrant, the Government will have to rely on other less-direct and potentially less-effective methods to find” the subject.

The court agrees this might be more difficult for the government.

The Court will accept the Government’s representation that the task of locating the suspect may be more cumbersome if the prospective location information warrant is not granted.

But it isn't the court's job to make the government's work easier.

[T]he relative expediency or arguable cumbersomeness of the method of obtaining the location information sought by the Government is not a basis to rule that the SCA allows for something which its language otherwise does not permit.

The government will have to cut investigative corners somewhere else. Judge Bush's court isn't going to help out by participating in the government's self-induced SCA delusion. Stored records aren't records that don't exist presently and still have a chance of never existing, no matter how much the government believes they are.

Filed Under: 4th amendment, 5th amendment, cell site location info, csli, location info, ronald bush, sca, stored communications act, warrants

South Carolina Judge Says State's Asset Forfeiture Programs Are Unconstitutional

from the and-SC's-programs-are-similar-to-others-all-over-the-nation dept

Asset forfeiture certainly seems unconstitutional. But we don't have a lot of case law actually saying that. Something that began in the United States as a way to punish wrongdoers located elsewhere in the world, but whose property (usually a ship and its contents) had sailed into US jurisdiction, is now used by American law enforcement to take cash, vehicles, and whatever else they can haul away from people they think smell like weed.

The US government followed British law for its take on asset forfeiture. And yet, it was hardly ever used until the 20th century. Things ratcheted up during Prohibition, then faded away again. The New Prohibition -- the never-ending Drug War -- brought it back. And it's bigger than ever, despite the public's growing awareness that most of what's called "civil asset forfeiture" is just legalized theft.

The Supreme Court of the United States said one state's forfeiture program was unconstitutional. Citing the Eighth Amendment's protection against excessive fines, the Court said a program that allows cops to take a $42,000 vehicle from a person charged with a crime that only generates a $10,000 maximum fine is unconstitutional. This was criminal asset forfeiture -- there was a conviction involved -- but the ruling seemed to signal seizures where no criminal charges are brought would make any amount excessive.

The other recent ruling against forfeiture came from a federal judge in New Mexico. The Albuquerque Police Department's seizure of vehicles from drivers arrested for driving under the influence was called unconstitutional. It was also unlawful. A law passed by the state legislature banned this practice, but the PD didn't actually stop until after this ruling.

So, asset forfeiture continues pretty much unabated. Fortunately, there's been another ruling handed down that says pretty much everything about civil asset forfeiture is unconstitutional… in multiple ways. The downside is that, for now, it only affects part of one state.

A South Carolina circuit court judge in Horry County has ruled the state's civil asset forfeiture law unconstitutional, in violation of the U.S. Constitution's Fourth, Fifth and 14th amendments.

While the decision by 15th Circuit Court Judge Steven H. John doesn't set precedent beyond his courtroom, it could set the table for a state appellate court to determine whether South Carolina needs to enact reforms to its law.  

South Carolina's asset forfeiture programs are definitely in need of reform. Troopers camp on outbound highways to shake down drivers for cash. Cops respond to reports of crime by looking through victims' houses for any contraband that might excuse walking off with their cash. In one case, cops searched the house of a murder victim and helped themselves to $1,700 they found while looking for evidence of the crime they could hardly be bothered to investigate. Then they moved forward with the forfeiture, sending the notice of the PD's claim to the murder victim.

The decision [PDF] doesn't pull any punches. Judge John can't find anything he likes about the state's forfeiture programs. First up, it's the Eighth Amendment, which -- as incorporated by South Carolina's Constitution -- forbids excessive fines. Here, the judge draws the line the Supreme Court of the United States didn't: forfeitures without convictions makes any seizure excessive. [emphasis in the original]

This Court finds that South Carolina's forfeiture statutes violate both the federal and South Carolina constitutional protections against excessive fines by permitting the government to seize unlimited amounts of cash and other property without regard to the proportionality of the crime that may have been committed. Indeed, they allow the government to seize unlimited amounts of cash and other property when no crime has been committed, without a criminal conviction and without proof of a crime having been committed beyond a determination of probable cause.

[S]outh Carolina's forfeiture statutes would allow law enforcement to seize millions in assets from an individual when the maximum fine authorized by law is minimal or when no crime has been committed at all. This unfettered authorization to seize unlimited amounts of property from citizens without regard to the proportionality of the offense committed -- indeed, without evidence proving that the individual committed an offense -- compels this Court to find that the statutory scheme is unconstitutional and must be invalidated…

The Fifth and Fourteenth Amendments are violated by the burden shifting that occurs during forfeiture proceedings. This forces citizens to prove the seized property was acquired through legal means while only asking the government to show courts there's a small possibility it's correct in its assumptions of illegal origin. The entire process is backwards. Any system that allows the government to take property from individuals without even charging them with a crime wreaks havoc on the due process supposedly guaranteed by the Constitution.

But that's not the only violation of these rights. The judge points out that the perverted incentives forfeiture programs create do further damage to the Constitution.

Forfeiture programs in South Carolina have an unconstitutional incentive to prosecute forfeiture cases because, in practice, these programs set their own budget and can spend forfeiture funds in any amount and on any items that they choose, including recurring expenses, and without any meaningful oversight. "Thus, there is a 'realistic possibility' that forfeiture officials' judgment 'will be distorted by the prospect of institutional gain' -- the more revenues they raise, the more revenues they can spend."

Because the revenues generated by the forfeiture programs are used to pay the expenses of the forfeiture programs, to justify the salaries of forfeiture employees, and to maintain a level of discretionary spending that would not otherwise be available to the agencies involved, enforcement personnel have an institutional financial incentive to vigorously pursue forfeitures regardless of the merits of the action.

On top of that, there's the quasi-judicial process, which is designed to efficiently separate people from property cops have seized from them. That's another string of Fifth and Fourteenth Amendment violations.

Under S.C. Code the seizing agency is required to file a forfeiture action within a reasonable time of the seizure. The statute does not define a reasonable time. The law permits a seizure without a warrant if the seizure is made as incident to arrest or if probable cause exists to believe that the property was used in violation of the drug laws… The statute does not have a provision for any type of pre-seizure or post-seizure hearing to determine if probable cause exists… [T]he law does not provide for any judicial review or judicial authorization prior to or subsequent to the seizure.

In practice, many seizures under South Carolina's forfeiture laws are not followed up by the filing of a forfeiture action, leaving many defendants with the choice of retaining an attorney to file a civil action against the state or simply allowing law enforcement to keep their money or property.

Because the statutes do not require a pre-seizure or post-seizure hearing, S.C. Code 44-53-520 and S.C. Code 44-53-530 do not comply with the due process clause of Article 1, Section 3 of the South Carolina Constitution or the Fifth and Fourteenth Amendments of the United States Constitution.

Judge John pitches a shutout. Asset forfeiture in almost any form is unconstitutional. Civil asset forfeiture in any form is unquestionably unconstitutional. Where the government chooses to take this from here will be interesting. Does it take the loss and limit the damage to this judge's courtroom, meaning it will have to hope any forfeiture proceedings it engages in are routed around this new damage? Or does it challenge the ruling and risk having this spread across the state? If the agencies affected are greedy enough, they might just act against their own interest. And that could be good news for South Carolinians.

Filed Under: 14th amendment, 4th amendment, 5th amendment, asset forfeiture, civil asset forfeiture, legalized stealing, police, south carolina

Court Says Compelled Production Violates Fifth Amendment... Unless The Gov't Takes Certain Steps First

from the a-small-safeguard-is-better-than-none-at-all dept

A federal judge in California has issued a ruling [PDF] on the Fifth Amendment that upholds both the Constitutional right and a request that appears to violate it. It doesn't all fit together perfectly, but the "foregone conclusion" doctrine factors into it. But constraints are put on this conclusion and, ultimately, that's how the government is permitted to carry out this search.

It originates, as so many of these do, from a drug investigation. The government believes it can find evidence it needs for its prosecution by searching the phone found on the suspect. Bad news: the phone's contents are locked behind a biometric wall and it needs judicial permission to force the suspect to open the phone for it.

The government argued that biometric features like fingerprints, retinas, blood, facial features, etc. are non-testimonial because they are physical evidence, not testimony. Obviously, a face that unlocks a phone is also a face anyone can see. It imparts no knowledge the suspect may want to keep secret. But combined with a locked device requiring biometric input, it actually imparts knowledge law enforcement may not have when they seek compelled production: it identifies the person as the owner of the device.

This can be testimonial, depending on the government's foregone conclusions, or lack thereof. The court says as much here:

Here, compelling an individual who is a target of the investigation to use his or her finger or face to unlock a device represents incriminating testimony within the meaning of the Fifth Amendment because it amounts to an assertion of fact that that the individual has the ability to unlock the device, which in turn makes it more likely that the individual locked the device and put the material sought by the warrant on the device.

More to the point, the government's arguments about biometric features not being testimonial is a dodge. Unlike being fingerprinted after an arrest, applying a fingerprint to a phone gives the government what it really wants -- not what it says it wants when it engages in this sort of intellectual dishonesty. The court calls this out:

Unlike a fingerprint or blood sample, which is obtained for the purpose of identifying a particular individual, the only purpose of compulsory application of a biometric feature to a device is to obtain access to the device's contents; the government has no interest in obtaining the physical characteristic (e.g., the fingerprint) per se.

So, if compelled production of fingerprints, retinas, or whatever's needed to unlock a seized phone violates the Fifth Amendment, how does the government work around it? Well, normally the court would examine its conclusions -- what evidence the government already has that links the locked device to the suspect in custody.

In this case, the court doesn't go that far. It gets out ahead of this matter and forces the government to reach these conclusions before it can start applying biometric features.

During the execution of the search of the SUBJECT PREMISES described in Attachment A, law enforcement personnel are authorized to compel [named individuals] to apply their respective biometric feature(s) to a smartphone or other electronic device capable of being unlocked by such feature in order to search the contents of the device as authorized by this warrant, but only if the following conditions are met:

(1) the device is found on the person of one of the individuals named above or at the SUBJECT PREMISES; and

(2) as to a particular device, law enforcement personnel have information that the particular individual who is compelled to apply his or her biometric feature(s) has the ability to unlock that device, such that his or her ability to unlock the device is a foregone conclusion.

This means the government can't find a bunch of devices and start playing fingerprint roulette with this court order. It will have to find devices on certain people and then it still needs to be able to connect the device to the person holding it before it can compel production.

This is the balance the court strikes: the government can bypass the Fifth Amendment if it lines everything up first. It's the same sort of compromise courts create for the Fourth Amendment. Unreasonable searches are forbidden. A warrant, granted by the court, allows the government to engage in unreasonable searches. In this case, the court is creating a narrow exception to the Fifth Amendment that forces the government to show its work before it can start compelling production. It's not perfect, but it will have to do until more case law is established and higher-level courts are willing to start handing down precedent.

Filed Under: 5th amendment, biometrics, compelled production, passwords, police

Judge Orders White House To Restore Reporter's Press Pass It Illegally Removed

from the well-duh dept

Just a few weeks ago, we wrote about how the White House was clearly setting itself up for another embarrassing failure in court when it removed the press pass of Brian Karem. This wasn't new. The same thing had happened a year ago. And yet, our comments filled up with a lot of nonsense about how we were wrong and "there is no right to a White House press pass" and a bunch of other nonsense.

I'll be curious to hear the response from those same individuals now that a federal judge has ordered the press pass restored.

As the Court will explain below, Karem has, at this early stage of the proceedings, shown that he is likely to succeed on this due process claim, because the present record indicates that Grisham failed to provide fair notice of the fact that a hard pass could be suspended under these circumstances. Meanwhile, Karem has shown that even the temporary suspension of his pass inflicts irreparable harm on his First Amendment rights. The Court therefore grants Karem’s motion for a preliminary injunction and orders that his hard pass be restored while this lawsuit is ongoing.

The court focuses mainly on the 5th Amendment due process claims, noting that those alone suffice to show that Karem is correct here. The judge goes into great detail about how the White House never did anything to suggest special decorum rules for these events, and thus the decision to ban Karem was arbitrary. The White House brought up all sorts of bizarre explanations insisting that it had provided adequate notice to Karem, but the judge points out that's just not true.

First, the letter’s language, taken in its entirety, is ambiguous as to whether the White House even intended to regulate events other than formal press conferences. Indeed, by expressly limiting the scope of the promulgated rules—including the warning about the “suspension or revocation of . . . hard pass[es]”—to formal press conferences, the White House arguably suggested that it was not going to police reporter behavior at other events, unless “unprofessional behavior occur[red]” and it was “forced to reconsider [its] decision” by publishing explicit rules.

Also, whatever "rules" there might have been were way too vague:

The letter refers only to “professional journalistic norms, ” Acosta Letter at 2, which is just as amorphous as the “reasons for security” language that the D.C. Circuit found insufficient in Sherrill, 569 F.2d at 130. Though “professionalism” has a well-known common meaning, it is inherently subjective and context-dependent. Such abstract concepts may at times indicate what is allowed and disallowed at the furthest margins, but they do not clearly define what is forbidden or permitted in common practice within those margins. The vagueness doctrine guards against this danger by ensuring that regulated parties are able to discern, as a practical matter, “what is required of them so they may act accordingly.” Fox, 567 U.S. at 253.

The judge also notes that Karem's lawyers presented plenty of evidence of obviously much worse behavior that did not lead to press pass revocation:

Defendants appear to argue that, even if the meaning of “professionalism” may be debatable in certain instances, Karem’s behavior was clearly unprofessional in this instance. This contention appears to be grounded in the notion that “a plaintiff who ‘engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.’”... Again, though, “professionalism” is context-dependent, and Karem has provided some evidence that White House press events are often freewheeling and that aggressive conduct has long been tolerated without punishment. That evidence includes a characterization of the White House press corps as “an unruly mob of reporters.” Ex. C at 5. It includes stories of how journalists have “rudely interrupted” presidents and “berated” press secretaries, Ex. D at 1; have “breach[ed] etiquette” by “heckling” during presidential remarks, Ex. I at 1; and have shouted questions at the conclusion of Rose Garden events, drawing the ire of honored guests in attendance, see Ex. E at 2; Ex. C at 4. The evidence even includes an account of how two reporters once “engaged in a shoving match over positions in the briefing room.” Ex. C at 5. This kind of behavior may have occasionally led the White House to speak with reporters’ employers... but it apparently never resulted in the revocation or suspension of a hard pass.... And, as noted above, the Acosta Letter does not unambiguously signal a departure from that regime. In fact, the letter could reasonably be read to mean that the pre-existing regime would be maintained for the time being.

Defendants, meanwhile, have submitted no evidence in support of their contention that Karem’s conduct was clearly proscribed under the existing “professionalism” policy. They instead rest entirely on Grisham’s August 16 letter and its conclusions that “Karem’s actions, as viewed by a reasonable observer, (1) insulted invited guests of the White House, (2) threatened to escalate a verbal altercation into a physical one to the point that the Secret Service deemed it prudent to intervene, and (3) re-engaged with . . . Gorka in what quickly became a confrontational manner while repeatedly disobeying a White House staffer’s instruction to leave.” Ex. 10 at 8. But in light of the evidence that Karem has presented the first and third conclusions do not seem clearly sanctionable in the context of the White House press corps. And the second conclusion is not supported by the various video recordings of the July 11 incident. No doubt, Karem’s remark that he and Gorka could “go outside and have a long conversation,” id. at 3, was an allusion to a physical altercation, but the videos make clear that it was meant as an irreverent, caustic joke and not as a true threat. And the videos belie the notion that a Secret Service agent had to intervene to prevent a fight: the agent walks right past Karem as the exchange with Gorka is concluding (before returning upon hearing someone call Karem a “punk ass”). See Ex. 63 at 0:30–0:36; Ex. 61 at 0:23–0:27. Rather, Karem and Gorka each had ample opportunity to initiate a physical altercation, and they each made the decision not to.4 Plus, Karem’s interaction with Gorka in the Rose Garden was brief—about twenty seconds, see Ex. 63 at 0:09–0:31—and it came after the President’s remarks had concluded. This event was also one where jocular insults had been flying from all directions.... There is no indication in the record that other offenders were reprimanded, or even told to stop.

The court notes that it need not really get into the 1st Amendment arguments, given the 5th Amendment points raised above, other than to order the immediate return of the press pass, because taking it away creates irreparable harm to Karem's 1st Amendment rights.

It is not merely an abstract, theoretical injury, either. As Sherrill recognized, “where the White House has voluntarily decided to establish press facilities” that are “open to all bona fide Washington-based journalists,” the First Amendment requires “that individual newsmen not be arbitrarily excluded from sources of information.” ... Such exclusion is precisely what Karem is suffering here. His First Amendment interest depends on his ability to freely pursue “journalistically productive conversations” with White House officials.... Yet without his hard pass, he lacks the access to pursue those conversations—even as an eavesdropper. And given that the news is time-sensitive and occurs spontaneously, that lack of access cannot be remedied retrospectively.

The case is not over, but for the time being the White House needs to restore Karem's pass. And I'll be eagerly waiting to see what those who insisted this case would go the other way have to say in our comments.

Filed Under: 1st amendment, 5th amendment, brian karem, due process, journalism, press pool, stephanie grisham, white house

District Court Rolls Back Magistrate's Decision, Says Compelled Fingerprint Product Isn't A Fifth Amendment Issue

from the SHOW-US-YOUR-HANDS! dept

So much for the Fifth Amendment. At least in Idaho, anyway. Back in January, a magistrate judge rejected the government's attempt to force a suspect to unlock a seized phone using his fingerprints. The judge found the government's request to be a violation of two rights -- the Fifth Amendment protection against compelling a defendant to testify against themselves -- and the Fourth Amendment, since the government hadn't shown a connection between the accused and the seized device.

As the magistrate pointed out, the government could not rely on "foregone conclusion" arguments because it had failed to develop any foregone conclusions. The warrant itself said the government was seeking to search the phone for "indicia of ownership" -- something the government should have been able to plausibly allege long before it started asking the court to compel the suspect to unlock the device.

The judge said the government's application lacked a lot of info it needed to pursue this next step.

The applicant avers that, when questioned at the residence at the time the earlier search warrant was executed, the individual told law enforcement his/her phone was in the bathroom. A phone was found in a bathroom, and the application implies that the individual was not in the bathroom when that statement was made. But three other phones were also located during the search. There is no specific information about how many bathrooms were in the residence. There is no information about whether the individual lives alone or whether anyone else lives or was in the residence at the time of the search. To be clear, none of these facts are determinative of the Court’s conclusion in this case. But they do illustrate that any connection between the individual and the phone at issue here is more tenuous than it might be under other circumstances.

Given the government's inability to tie the suspect to the seized phone, it's absolutely astonishing the district court has decided to reverse the magistrate's decision. (h/t Orin Kerr)

The court's reversal comes to exactly the opposite conclusion using exactly the same information the government presented to the magistrate judge. The government's inability to conclusively tie the phone recovered from the bathroom to the suspect is now, somehow, more than enough info to justify the compelled production of fingerprints. From the decision [PDF]:

The Government further represented in its application for the additional warrant that it already knew this particular cellphone belonged to the individual who was subject to the warrant because the individual stated—when questioned at his residence by police officers executing the warrant—that his phone was in the bathroom where he had been just prior to answering the door. The Google Pixel 3 XL cellphone was subsequently found in that bathroom.

A phone found in a bathroom is now the phone in the bathroom, making all those Fourth and Fifth Amendment concerns vanish into the ether.

But what's now in the ether may not matter -- at least for this phone. The precedent will be helpful but it's too late to do much about the seized phone, as the court points out.

The ability to unlock a cellphone with a fingerprint (biometric encryption) expires after 48 hours of not unlocking it. At that point, a passcode of some type must be used. Here, it took the Magistrate Judge a few days to issue the order denying the warrant1 and then took the Government eight days to file its motion for review. Consequently, any decision by the court in this case will have no impact on this case. The Government simply can no longer unlock the cellphone with a fingerprint. The issue is, therefore, moot under County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).

The government doesn't want the issue mooted. It wants some precedent, or at least a ruling it can use to persuade magistrates to approve potential Constitutional violations. The government argues contrasting rulings from magistrate judges on compelled product requests creates a "split" the district court must resolve.

The court declines to act on any perceived split here, presumably to the government's chagrin.

[T]he Government has not cited to a single written decision—and none exists to the Court’s knowledge—where a magistrate judge, or any judge from this District, has held that biometric data relating to a cellphone can be obtained by a warrant despite either Fourth Amendment or Fifth Amendment concerns. The mere fact that a magistrate judge has signed search warrants that permitted law enforcement to use a person’s biometrics to unlock electronic devices does not mean that the magistrate judge has had the opportunity to carefully and meaningfully decide the issue raised in this case. After all, the very ex parte nature of applications for search warrants does not lend itself to issues being raised as part of the process. It is not clear to this Court that there is a reasoned split of opinion between the magistrate judges in this District. This Court does not rely on the “split of authority” exception to address this issue.

That's the good news. The government does not have a blank check to compel fingerprint production. In this case, however, the court says the government isn't compelling the production of anything testimonial. But this is only due to the method the government says it will deploy.

Where, as here, the Government agents will pick the fingers to be pressed on the Touch ID sensor, there is no need to engage the thought process of the subject at all in effectuating the seizure. The application of the fingerprint to the sensor is simply the seizure of a physical characteristic, and the fingerprint by itself does not communicate anything. It is less intrusive than a forced blood draw. Both can be done while the individual sleeps or is unconscious. Accordingly, the Court determines—in accordance with a majority of Courts that have weighed in on this issue—that the requested warrant would not violate the Fifth Amendment because it does not require the suspect to provide any testimonial evidence.

Even if the government does nothing more than pick a random finger and apply it, it's using the suspect's body in an attempt to determine something it should have known before seeking compelled production. In this case, it's an undetermined number of "fingers," which suggests the government can keep trying until the device is unlocked or it runs out of fingers.

The government is still searching for "indicia of ownership" and is hoping placing the suspect's fingers on the seized phone will provide it with information the suspect knows, but the government doesn't. Whether or not the government can do this under the Fifth Amendment comes down to its "foregone conclusions," but the government doesn't appear to have one of those to work with.

The district court has turned the government's attempt to find out who owns the seized phone into a foregone conclusion by overriding the magistrate's determination on this issue. This won't set precedent in Idaho but it does indicate the district level will give the government the benefit of the doubt in cases like these, which lowers the bar for acceptable violations of Constitutional rights.

Filed Under: 4th amendment, 5th amendment, fingerprints, magistrate judge

Idaho Magistrate Judge Shoots Down Another Government Request For Compelled Fingerprint Production

from the on-the-Fifth,-I've-told-you-twice dept

Another small victory for Constitutional rights comes via the same federal magistrate who previously rejected another law enforcement request to compel production of fingerprints to unlock a phone.

In May, federal magistrate judge Ronald E. Bush said compelled production of fingerprints violates both the Fourth and Fifth Amendment. He declared the fingerprint application itself to be a search, one performed with the assistance of the suspect. There's the Fourth Amendment issue.

And since the government hadn't provided evidence tying the suspect to the phone, producing fingerprints would provide the government with testimonial evidence it didn't have. The government wanted to search the phone for "indica of ownership" -- something it hoped to perform after it had already compelled production of fingerprints. The government had no "foregone conclusion" to work with, so forcing a suspect to give up information only they know (namely, possibly verifying ownership by unlocking the phone) implicated his Fifth Amendment protections against being forced to testify against himself.

In this case, Judge Bush has handed down another denial [PDF]. Once again, the government wants to compel the unlocking of a device but doesn't have everything it needs. What the government does have isn't much. The evidence tying the suspect to child porn possession is mostly ephemeral: IP addresses, email addresses, and online accounts. Using this as probable cause, the government is asking to search electronics seized from a searched residence. (The government also wants to search the suspect's car, presumably in case any electronics are stashed there.)

As the court points out, the government wants to do things to a phone it hasn't shown will actually need to have this stuff done to it. It's working off an assumption and that assumption isn't enough for the judge to agree to the government's proposed rights violations.

The affidavit describes a feature of the smartphone which, according to the investigator, offers users “the ability to unlock the device via the use of a fingerprint or thumbprint.” It also describes that, in the investigator’s “training and experience, cellular telephone users often enable” such a touch identification security feature “because it is considered to be a more convenient way to unlock the device than by entering a numeric or alphanumeric passcode or password, as well as a more secure way to protect the device’s contents. This is particularly true when the user(s) of the device are engaged in criminal activities and thus have a heightened concern about securing the contents of the device.”

The affiant also states that “[t]he passcode or password that would unlock the cellular telephone device found during the search of [the individual, the vehicle, or the residence] is not known to law enforcement. Thus, it will likely be necessary for law enforcement to press [the individual’s] fingers and thumbs to the [smartphone] found during the search . . . in an attempt to unlock the device for the purpose of executing the search authorized by this warrant.” However, the affidavit does not describe a particular reason to believe that the subject cellphone has enabled a touch identification feature or would have such feature enabled if the device were seized during execution of a search warrant.

The attached footnote provides further reasons why the magistrate is rejecting this application for application of fingerprints.

Regardless of the constitutional issues, the application may also be premature and not ripe for decision. The applicant presupposes that a search will uncover and result in seizure of a specific smartphone at the time of the search but does not identify the device beyond a make and model and does not account for the possibility that a search might uncover additional or different devices.

The court reminds the government that it can no longer take phone searches as lightly as it once did. The Supreme Court's Riley decision made it clear phones are not pants pockets or suitcases or file cabinets. In many cases, they can provide access to a large portion of a person's life. When the government wants access to this wealth of information, it needs to deal with sureties and particulars, not assumptions devices will hold evidence and suspects will provide the keys for entrance. Here, the government does not have enough to demand the production of these keys.

Further, the government cannot demand someone testify against himself. While other courts are still wrestling with this question, Judge Bush's stance on this issue is crystal clear:

[S]ome actions are not within the Fifth Amendment privilege. Furnishing a blood sample, for instance, or providing a handwriting or voice exemplar, standing in a lineup, or submitting to fingerprinting for identification purposes are not testimonial communications because such actions do not require the suspect “to disclose any knowledge he might have” or to “speak his guilt.” Doe, 487 U.S. at 210–211 (citations omitted). The relevant distinction is the “extortion of information from the accused, . . . the attempt to force him to disclose the contents of his own mind.” Id. at 211 (citations omitted).

There is exactly that “extortion” of information here, however. The Government seeks to use the force of a search warrant to compel an individual to literally “open” the “privacies of [his/her] life,” Riley v. California, 573 U.S. at 403, and, by doing so, “to conced[e] the existence, possession and control, and authenticity of the documents tend[ing] to incriminate him.” In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d at 1343. The act of being forced to use one’s fingerprint to successfully open the contents of a smartphone is the equivalent of forcing a tangible oral or written statement from that individual that he or she has at least some degree of possession and control of the phone and possession, control and knowledge of its contents.

Once again, the court finds compelled fingerprint production to unlock devices "testimonial." And if it's testimonial, it's blocked by the Fifth Amendment. The government will just have to find another way to get at the evidence it thinks might reside in the phones it thinks it might find whenever it actually manages to get a warrant signed by this judge. Until then, it seriously needs to rethink its approach to this problem because the usual stuff isn't going to work in this court.

Filed Under: 4th amendment, 5th amendment, compelled production, encryption, fingerprints, idaho, magistrate judge, phones, ronald bush, unlock

Another Federal Magistrate Says Compelled Production Of Passwords/Biometrics Violates The Fifth Amendment

from the with-bonus-Fourth-Amendment-coverage! dept

In another judicial rarity, a magistrate judge has rejected a warrant request by the federal government to compel a criminal suspect to unlock a phone found during the search of his residence. It won't set precedent but it does present some arguments suspects will find useful when faced with orders for compelled production of passcodes or passwords.

Earlier this year, a California magistrate came to the same conclusion, finding that compelled production of fingerprints or faces to unlock phones violated the Fifth Amendment rights of the suspects targeted by the warrant. Equating biometric security features with passwords, the judge denied the warrant request, stating that if it's a Fifth Amendment violation to compel password production, it's a Fifth Amendment violation to force someone to apply their fingerprints to a locked device.

The device in this case is apparently secured by a swipe pattern. This would require more input from the suspect than simply applying a finger to the device. The court finds [PDF] that this act would be testimonial -- covered by Fifth Amendment protections against self-implication. But it goes further, finding that attempting to violate Fifth Amendment rights causes violations of Fourth Amendment rights.

The Court denies the Government’s application for a warrant authorizing law enforcement to compel an individual to use his/her fingerprints to unlock a certain cellphone. Using the individual’s fingerprints for this purpose would constitute a search and seizure under the Fourth Amendment. For a search and seizure to be lawful under the Fourth Amendment it must be “reasonable.” A search or seizure is unlawful, and therefore unreasonable, when it violates a person’s constitutional rights. Here, compelling the use of the individual’s fingerprints violates the Fifth Amendment right against self-incrimination because the compelled unlocking of the phone with fingerprints would communicate ownership or control over the phone. Because the compelled use of the individual’s fingerprints violates the Fifth Amendment, the search and seizure would not be reasonable under the Fourth Amendment. Thus, the Fourth Amendment and the Fifth Amendment prohibit the result sought by the Government.

The locked phone was taken during a search of the residence for suspected child porn possession. The problem with the government's warrant request is that the compelled production seeks testimonial information that can be gleaned simply by observing the suspect unlocking the device. As the court points out, this isn't acceptable, even if it's little more than a fingerprint being applied to phone's lockscreen. It's what the government doesn't know that hurts its case.

Here, however, the Government seeks to compel the individual to use his/her fingerprint to attempt the unlocking of a cellphone seized at the residence. Indeed, the Government acknowledges that one purpose for doing so is to “search for . . . indicia of ownership.” Aff. in Supp. of App. for Search Warrant 14. Thus, the Government seeks evidence that the individual’s fingerprint unlocks the phone not simply to access its contents but also to establish the individual’s possession and control of the phone and knowledge of its contents.

The government can't rely on the "foregone conclusion" theory since it apparently lacks enough evidence to tie the suspect to the phone found in the bathroom. Without more, the government is relying on the suspect to, in effect, testify against himself by unlocking a device the government can't conclusively say belongs to him.

A footnote details the yawning gap between the actual evidence the government has and the "foregone conclusion" it was hoping to have applied to its warrant request.

The applicant avers that, when questioned at the residence at the time the earlier search warrant was executed, the individual told law enforcement his/her phone was in the bathroom. A phone was found in a bathroom, and the application implies that the individual was not in the bathroom when that statement was made. But three other phones were also located during the search. There is no specific information about how many bathrooms were in the residence. There is no information about whether the individual lives alone or whether anyone else lives or was in the residence at the time of the search. To be clear, none of these facts are determinative of the Court’s conclusion in this case. But they do illustrate that any connection between the individual and the phone at issue here is more tenuous than it might be under other circumstances.

Another footnote suggests that if the government had performed a little bit of due diligence prior to requesting this warrant, things might have gone another way.

There are, of course, other investigative techniques to determine who owned or possessed the phone, such as seeking to lift fingerprints from the device or interviewing witnesses who might connect a specific individual to the phone. Further, the Government has investigatory methods available to it to seek stored communications and subscriber information regarding phones known to be used by a particular person, upon a proper showing.

Finally, the court lays it all out for the government. Compulsion is the opposite of consent. If the government would like to ask the suspect to unlock the phone, it's free to try that angle or anything listed in the footnote above. But what it can't do -- not without violating rights -- is ask the court for permission to force someone to incriminate themselves by inextricably linking a suspect device to themselves.

The reach of this decision goes no further than the rejected warrant. But it does at least show some judges are paying close attention to warrant requests seeking compelled production of passwords or biometric markers. That's good news for Americans and their rights.

Filed Under: 4th amendment, 5th amendment, biometrics, locked phones, magistrate judge, passwords

Massachusetts Judge Says ATF Can Apply A Suspect's Fingerprints To Unlock An IPhone

from the five-finger-Fifth-Amendment-discount dept

It looks like a passcode still beats a fingerprint when it comes to securing your info. Maybe not from criminals, but definitely from the government. Lisa Vaas of Naked Security reports the ATF has received permission from a federal judge to apply a suspect's fingerprints to a phone to unlock it.

[T]he document, issued on 18 April, Massachusetts federal district judge Judith Dein gave agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) the right to press a suspect’s fingers on any iPhone found in his apartment in Cambridge that law enforcement believes that he’s used, in order to unlock the devices with iPhone Touch ID.

The warrant [PDF] authorizes ATF agents to "press the fingers (including the thumbs)" of suspect Robert Brito-Pina to the "Touch ID sensor of any Apple cellular phone" recovered during the search. Brito-Pina is suspected of buying and selling weapons -- neither of which are permissible given his felon status. The ATF apparently believes evidence of this will be found on Pina's iPhone.

There doesn't appear to be any limit on how many fingers the ATF can use to unlock the phone. The warrant says only that officers will decide which fingers to apply. Presumably, that means all of them (including thumbs), since there's no language limiting officers to a certain number of finger applications. The only thing preventing every finger from being applied during the search is the iPhone itself, which will require a passcode after five wrong fingerprint applications.

The phone's nexus is established pretty thoroughly in the warrant application, which much of the sting operation using an arrestee-turned-informant being carried out via text messages. The government moved to unseal the warrant five days after applying for it, suggesting it has already executed this warrant.

The weird thing about the warrant application, which thoroughly details the sting operation and the ATF's surveillance of the suspect, is it appears the swearing agent isn't actually sure Pina owns an iPhone.

Given the popularity of Apple brand devices, I believe it is likely that I will find Apple brand devices such as an Apple iPhone at the Target Location.

And, despite authorizing the agents to only use Pina's finger to unlock any recovered iPhones, the warrant still contains boilerplate stating agents may demand fingerprint applications from anyone at the searched residence.

In some cases, it may not be possible to know with certainty who is the user of a given device, such as if the device is found in a common area of a premises without any identifying information on the exterior of the device. Thus, it will likely be necessary for law enforcement to have the ability to require any occupant of the Target Location to press their finger(s) against the Touch ID sensor of the locked Apple device(s) found during the search of the Subject Premises in order to attempt to identify the device's user(s) and unlock the device(s) via Touch ID.

This case likely won't budge the needle on the Fifth Amendment question. At least, not yet. If Pina wants the evidence gleaned from the iPhone suppressed (assuming there is an iPhone), there may be further discussion of this crucial issue in the future. Most judicial decisions on the use of biometrics to unlock devices have sided with government, asserting that faces and fingerprints are "non-testimonial," even if they're the gateway to plenty of evidence that will be used against the defendant. But there have been a few judges who've taken contrary stances, so the issue is far from settled.

Filed Under: 4th amendment, 5th amendment, atf, fingerprints, massachusetts, search, unlock