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

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

Federal Prosecutors Use All Writs Order To Compel Suspect To Unlock Phone With His Fingerprint

from the but-it-still-may-not-have-worked dept

Law enforcement is still trying to break into iPhones and still using the All Writs Act to do so. A sex trafficking prosecution involving the ATF has resulted in a suspect being ordered to cough up his, um, fingerprint, in order to allow investigators to access the contents of his phone. Matt Drange of Forbes has more details [caution: here there be ad-blocker blocking]:

Prosecutors hoped that the search, conducted on an iPhone 5s by special agent Jennifer McCarty of the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives, would help them piece together evidence in an alleged sex trafficking case involving a man named Martavious Keys. Keys had the iPhone with him when he was arrested on May 19, according to recently unsealed court filings. A week later, on May 26, prosecutors asked the judge in the case to force Keys to open the device with his fingerprint, unlocking a potential trove of information including emails, text messages, contacts and photos stored on the device that could be used as evidence.

While courts generally agree that a fingerprint is non-testimonial -- despite its ability to unlock all sorts of testimonial stuff -- there aren't too many courts willing to extend that coverage to passwords. There are exceptions, of course, but items held in someone's mind are given a bit more deference than those at their literal fingertips.

And that's likely why the All Writs-compelled fingerprint access hasn't allowed the ATF inside Keys' phone. The feds can force Keys to place his finger on the iPhone screen all they want, but it likely won't unlock the device. Apple's security requires a passcode as well as a fingerprint if it's been more than 48 hours since the phone was last unlocked. The time elapsed between when the phone was seized and the order obtained for Keys' fingerprint added another layer of security to the phone -- one not so easily defeated with All Writs orders.

Keys is no one's idea of a sympathetic party. He allegedly forced two teen girls, aged 14 and 15, to have sex with men for several hours a day by drugging them into submission. Whether or not his phone contained more evidence is unknown. It's unclear from the recently unsealed documents whether federal investigators found another way into the device after the application of Keys' fingerprint failed to unlock the phone.

And that's sort of a problem. The government is using All Writs orders for a great many things these days, often during sealed cases and with little to no transparency. The fact that Congress apparently authorized this as a fill-in for things warrants couldn't necessarily reach has made the use of All Writs requests both indispensable and easily-abused. The fact that Congress authorized this in 1789 -- with no conceivable idea of the form "papers" would take over the next 200+ years -- usually seems to work in the government's favor.

A bit more transparency would go a long way to assuage concerns about abuse, but overuse/abuse of the 1789 Act is likely the reason there isn't more transparency. If the court decides it's going to compel Keys to turn over his passcode as well (assuming the phone hasn't already been cracked), at least it won't have to toss him in jail if he doesn't. Keys is already behind bars awaiting trial for his sex trafficking indictment. On one hand, that lowers the coercive value of imprisonment. On the other hand -- if he refuses and is hit with a contempt order -- he'll remain in jail indefinitely, even without having been found guilty of anything more than contempt of court.

Filed Under: all writs act, encryption, fingerprint, phones, unlock

Are 10% Of iPhones Sold To Unlockers?

from the are-10%-now-bricked? dept

Analysts from investment bank Piper Jaffray are making some news today after releasing a report claiming that 10% of iPhones are actually being sold to groups that are unlocking them and reselling them. They seem to be basing this on the fact that there are a bunch of folks going in and buying the maximum single allotment of 5 iPhones at a time. If this is true, the actual number of unlocked iPhones could actually be significantly higher, as many unlockers are buying the phone and unlocking it themselves. On the flip side, there could be other explanations for people buying 5 iPhones rather than to resell them unlocked. Either way, it should be clear that there's a fair amount of demand for unlocked iPhones, which again raises the question of why Steve Jobs ever agreed to an exclusive with AT&T.

Filed Under: iphones, unlock
Companies: apple

Unlocked iPhones (Temporarily?) iBricked

from the and-so-it-goes dept

As Apple warned earlier this week, the latest firmware update did, in fact, "break" unlocked iPhones and kill unofficial 3rd party iPhone apps. It's still not clear how intentional this was, but it still seems like something that Apple should have made at least a little more of an effort to avoid. The folks who unlocked their iPhones and who were installing 3rd party apps were the early adopters who were most likely to go out and evangelize the device -- especially if it was more useful thanks to alternative networks and better applications. Over at Gizmodo, they have a good post discussing what's actually happening, with two important points: the update is not doing any permanent damage to the phone (meaning that it'll probably be a short while until software hacks are developed to bring bricked iPhones back to life) and that Apple could have pretty easily avoided messing up the phones (suggesting that perhaps it was at least somewhat intentional).

Filed Under: iphones, unlock
Companies: apple