- February 26, 2017
- Clayton Rice, Q.C.
On February 16, 2017, Magistrate Judge M. David Weisman of the US District Court for the Northern District of Illinois, Eastern Division, in Chicago, rejected an application by the government for a provision in a search warrant compelling people present at the scene of a search to unlock cellphones using biometric readers in In re Application for a Search Warrant, Case No.: 17M081 (2017). Here’s the story.
The police were investigating an internet connection that was being used to traffic in child exploitation images. The government sought the search warrant to seize electronic storage media and computer equipment from the targeted location. The government also sought authority to compel any individual present at the premises at the time of the search to provide fingerprints or thumbprints “onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device.” Judge Weisman issued the warrant but denied the request for compelled thumbprints. There were two reasons.
First, compelling a person to provide a fingerprint or thumbprint raises a case-by-case question of reasonableness under the Fourth Amendment that could not be addressed in a “blanket” application. The government was seeking an order that would allow agents to force “persons at the Subject Premises” to apply their thumbprints and fingerprints to any Apple electronic device recovered at the premises. Judge Weisman found, at p. 4, that “[t]he request is neither limited to a particular person nor a particular device”. The request was made without specific facts as to who was involved in the criminal conduct linked to the premises or specific facts as to what Apple encrypted device was being employed. The warrant therefore did “not establish sufficient probable cause to compel any person who happens to be at the subject premises at the time of the search to give his fingerprint to unlock an unspecified Apple electronic device.”
Second, Judge Weisman suggested that compelling a thumbprint will also violate the Fifth Amendment because of the personal and sensitive information stored on electronic devices. The Fifth Amendment analysis involved consideration of United States v Doe (In re Grand Jury Subpoena Duces Tecum), 670 F.3d 1335 (11th Cir. 2012) that I discussed in my post titled Fingerprints or Passwords dated January 28, 2017. It will be the focus of my remaining comments. Judge Weisman said this, at p. 11:
“…[T]he Doe court concluded that an ‘act of production can be testimonial when that act conveys some explicit or implicit statement of fact that certain materials exist, are in the subpoenaed individual’s possession or control, or are authentic’ and the ‘touchstone’ of whether production is testimonial is if the ‘government compels the individual to use ‘the contents of his own mind’ to explicitly or implicitly communicate some statement of fact.’ Id. at 1345 (citing Curcio v. United States, 354 U.S. 118, 128 (1957). The Court explained that an act of production is not testimonial where the government compels merely a physical act, or under the forgone conclusion doctrine, if the government can show with ‘reasonable particularity’ that, at the time it sought the act of production, it already knew of the materials, thereby making any testimonial aspect a ‘forgone conclusion’. Id. at 1346.”
Under Fifth Amendment doctrine, then, an order compelling the use of a thumbprint to unlock an iPhone does not violate the right against self-incrimination because it is not testimonial. The thumbprint does not reveal what is going on in the person’s mind. Judge Weisman, however, went on to assert the following two things, at pp. 11-2:
- …[T]he government argues that the presentation of a fingerprint is not testimonial because under Doe v. United States, 487 U.S. 201 (1987), “[t]o be testimonial, an act must involve communication and ‘an accused communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Yet, the connection of the fingerprint to the electronic source that may hold contraband (in this case, suspected child pornography) does “explicitly or implicitly relate a factual assertion or disclose information.” Doe, 670 F.3d at 1342. The connection between the fingerprint and Apple’s biometric security system, shows a connection with the suspected contraband. By using a finger to unlock a phone’s contents, a suspect is producing the contents on the phone. With a touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.
- The government cites United States v. Wade, 388 U.S. 218, 223 (1967) for the proposition that the Fifth Amendment privilege against self-incrimination offers no protection against compulsion to submit to fingerprinting. This case, however, was decided in 1967, prior to the existence of cell phones, and in the context of utilizing fingerprinting solely for identification purposes. In the context of the Fifth Amendment, this Court finds these two starkly different scenarios: using a fingerprint to place someone at a particular location, or using a fingerprint to access a database of someone’s most private information. The Wade court could not have anticipated the creation of the iPhone nor could it have anticipated that its holding would be applied in such far-reaching manner. In fact, the Supreme Court has said “[t]he term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Riley v. California, 134 S. Ct. 2473, 2489 (2014).
Professor Orin Kerr of George Washington University Law School criticized the Fifth Amendment reasoning in an article titled Judge rejects warrant provision allowing compelled thumbprints to unlock iPhones published in The Washington Post edition of February 23, 2017. “The judge seems to think,” wrote Professor Kerr, “that using a person’s body to reveal really private information somehow makes it testimonial; it is using the body to produce evidence, after all. But the Fifth Amendment is solely concerned with compelling use of the mind, not compelling use of the body.” Professor Kerr went on to argue:
“There are ways that compelling someone to place fingers on biometric readers can require use of the mind…Imagine the police walk up to a person present at the scene and say this: ‘Here are 10 phones, and you have to pick out your phone and unlock it with Touch ID.’ Complying will be testimonial as to which phone belongs to that person and will amount to testimony that they know which part of their body unlocks it. On the other hand, if the police walk up to a suspect and say, ‘place your right thumb on this phone’, complying won’t amount to testimony about anything.
The fact that iPhones didn’t exist in 1967 is irrelevant, as is the fact that the police are ultimately able to get lots of personal information by unlocking a phone. Those are relevant to the Fourth Amendment analysis, as the Riley case shows. But they’re not relevant to the Fifth Amendment standard.”
In my previous post on this topic, Fingerprints or Passwords dated January 28, 2017, I argued that using biometric data for privacy is a bad idea although many technologists see it as a reasonable balance between convenience and security for mobile devices. The smartphone is the most important device we use to store vast amounts of personal, and for lawyers, privileged information. There is nothing in Judge Weismann’s recent ruling that changes my mind. The progress made in recent years by courts in the United States and Canada does not give us certainty in a murky privacy landscape.