The police in Oakland, California, had two suspects in the crosshairs of an extortion investigation for allegedly using Facebook Messenger to demand money from their target or they would distribute an embarrassing video of him. The Government applied for a warrant to search a residence and compel people present to provide biometric features such as a thumbprint or facial recognition to unlock digital devices found at the scene.

The dominant trend in American jurisprudence has been that suspects may be forced to unlock an electronic device like a smartphone by the use of biometrics. But they cannot be forced to provide a passcode. Production of a passcode is testimonial and protected by the Fifth Amendment privilege against self-incrimination. The use of biometrics is not. So goes the dominant trend. But there is a developing contrary trend that I have discussed in previous posts. (See: In re Application for a Search Warrant, 236 F Supp 3d 1066 (ND Ill 2017); and, On The Wire. Compelled Thumbprints. February 26, 2017; and, Compelled Password Production, October 30, 2018)

Here’s the update.

On January 10, 2019, the ruling of Magistrate Judge Kandis A. Westmore was filed in the United States District Court, Northern District of California, styled as In the Matter of the SEARCH OF A RESIDENCE IN OAKLAND, CALIFORNIA, Case No. 4:19-mj-70053. Judge Westmore denied the Government’s application for reasons moored in both the Fourth and Fifth Amendments.

1. Fourth Amendment

There were sufficient facts asserted in the supporting affidavit to believe that evidence would be found at the residence. The Government thus had probable cause to conduct a lawful search. However, authority was also sought to allow agents executing the warrant to compel “any individual, who is found at the Subject Premises and reasonably believed by law enforcement to be a user of the device, to unlock the device using biometric features.”

There were two suspects identified in the affidavit but the request was not limited to a particular person or a particular device. Judge Westmore therefore held that the request was overbroad. “The Government cannot be permitted,” she held at p 3, “to search and seize a mobile phone or other device that is on a non-suspect’s person simply because they are present during an otherwise lawful search.” Any subsequent submission was limited to devices “reasonably believed by law enforcement” to be owned or controlled by the two suspects.

2. Fifth Amendment

Did the proposed search of digital devices implicate the Fifth Amendment privilege against self-incrimination? That was the real controversy here. Some acts, while incriminating, such as fingerprinting or standing in a lineup, are not protected by the privilege. In Schmerber v California, 384 US 757 (1966) Justice William Brennan put it this way, at p 764: “The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.”

Judge Westmore began the analysis by acknowledging the challenge facing the courts in the digital age – that technology is outpacing the law – and that the United States Supreme Court recently instructed courts in Carpenter v United States, 138 S Ct 2206 (2018) to safeguard constitutional rights from being diminished by technological advancements. Judge Westmore said this, at p 4: “Citizens do not contemplate waiving their civil rights when using new technology, and the Supreme Court has concluded that, to find otherwise, would leave individuals ‘at the mercy of advancing technology’.”

Judge Westmore went on to hold, at pp 5-6, that testimony is not restricted to verbal or written communications. The act of production itself can qualify as testimonial if conceding the location, existence and authenticity of the documents tends to incriminate. Using a biometric feature to unlock an electronic device differs from fingerprinting or a DNA swab in two ways:

• First, a biometric feature may be used to unlock a device in lieu of a passcode. “In this context”, Judge Westmore said, “biometric features serve the same purpose of a passcode, which is to secure the owner’s content, pragmatically rendering them functionally equivalent.” (at p 5)
• Second, requiring someone to apply a thumb to a digital device is different than requiring a suspect to submit to fingerprinting. The act of applying a thumbprint concedes that the phone was in the possession and control of the suspect. Authentication of its contents “cannot be reasonably refuted.” (at p 6)

Judge Westmore therefore concluded, at p 6, that a biometric feature is analogous to the nonverbal, physiological responses elicited during a polygraph examination that are “essentially testimonial”. And there were other ways the Government could access the devices that would not “trample on the Fifth Amendment” such as obtaining the Facebook Messenger communications from Facebook under the Stored Communications Act, 18 USC 121. Circumventing Facebook and gaining access by violating the privilege was “an abuse of power” and unconstitutional.

3. Foregone Conclusion Doctrine

When the existence and location of documents are a foregone conclusion, and the suspect adds little or nothing to the Government’s information by conceding that he or she has the documents, the Fifth Amendment privilege is not implicated because “the question is not one of testimony but of surrender”. [See: In re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335, 1343 n 19 (11th Cir 2012)]

Did the doctrine apply here? Judge Westmore said – No! – relying on the analysis in Riley v California, 134 S Ct 2473 (2014) where the United States Supreme Court held that the police must get a warrant to search a cell phone seized from a suspect at the time of arrest. Smartphones are computers with capacity to store vast amounts of data far beyond traditional places like safes and filing cabinets. The full contents of such information as GPS location data and sensitive records cannot be anticipated by law enforcement. “Consequently,” Judge Westmore held at p 8, “the Government inherently lacks the requisite prior knowledge of the information and documents that could be obtained via a search of these unknown digital devices, such that it would not be a question of mere surrender.”

4. Conclusion

In a piece titled Feds forcing mass fingerprint unlocks is an “abuse of power,” judge rules posted to the ArsTechnica blog on January 14, 2019, Cyrus Farivar quoted Professor Blake Reid of the University of Colorado Law School who sees this ruling as a positive step because accessing people’s smartphones is “much more like accessing the contents of their brains than it is the contents of their file cabinets.” And in an article titled Feds Can’t Force You To Unlock Your iPhone With Finger or Face, Judge Rules published by Forbes on January 14, 2019, Thomas Brewster said that by extending Fifth Amendment protection to biometrics “all logins are equal”. I will leave you, then, with Justice Samuel Blatchford’s comment in Counselman v Hitchcock, 142 US 447 (1892), at p 562, that the privilege against self-incrimination “is as broad as the mischief against which it seeks to guard.”