Fingerprints: iPhone Users Forfeit Fifth Amendment.
Court rules fingerprints have no fifth amendment right. What does this mean for the rest of our biometric data? .
By: TheRiverMersey
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Fingerprints: iPhone Users Forfeit Fifth Amendment. - Video
Last week, there was a lot of press coverage about a Virginia court ruling on how the Fifth Amendment applies to bypassing a smart phone passcode. The ruling hasnt been available before today, but here it is: Commonwealth v. Baust, via Marcia Hofmann. Its a short opinion, just five pages, so its a quick read. Unfortunately, though, the opinion doesnt address the really important issue raised by compelled decryption: Whether the government can force the defendant to enter in the passcode. Its not the courts fault that the opinion didnt reach that, to be clear. The government never asked for an order compelling the defendant to do that, so the court didnt decide it. Heres a quick rundown of the facts, the law, and my reaction.
The defendant has been charged with assaulting a woman. There is reason to believe that the defendant videotaped the assault and that there is a copy of the video on the defendants passcode-protected smart phone. The state wants the defendant to be ordered either to disclose his passcode so the police can enter in the passcode to unlock the phone themselves, or else to give up his fingerprint to unlock the phone directly using the phones fingerprint sensor.
The court reaches a split ruling. First, there is no Fifth Amendment problem with forcing the defendant to provide his fingerprint. Second, the defendant cannot be forced to tell the government his passcode because that would be forcing the defendant to disclose the contents of his own mind. Most importantly, the court rules that the foregone conclusion doctrine doesnt apply because the police dont know the passcode:
Contrary to the Commonwealths assertion, the password is not a foregone conclusion because it is not known outside of Defendants mind. Unlike a document or tangible thing, such as an unencrypted copy of the footage itself, if the password was a foregone conclusion, the Commonwealth would not need to compel Defendant to produce it because they would already know it.
In dicta, the Court adds that the defendant could not be compelled to hand over a decrypted version of the video believed to be on his phone. Thats true because it is not a foregone conclusion that the video exists or is on the phone. The defendant cant be forced to effectively testify as to that by producing a decrypted version of the video.
This is just a state court trial ruling, not an appellate decision. So its interesting more for its reasoning than its precedential value. With that said, here are some thoughts on the reasoning of the case.
First, the courts ruling on divulging a fingerprint is easy. Theres obviously no Fifth Amendment problem with that. On the governments request for the passcode, the opinion is frustrating because the governments request was poorly framed. In this case, the government doesnt need to know the defendants passcode. It only needs to bypass the passcode gate, either through the fingerprint or by having the passcode entered in by the defendant. If the government couldnt get into the phone with the fingerprint, then, the sensible request would be for an order to have the defendant enter in the code rather than an order disclosing it to the government. But the government didnt ask for that: Instead it asked for an order that the defendant tell them his passcode.
Whats the difference? Having the defendant enter in his passcode would minimize the Fifth Amendment implications of the compelled compliance, as it would not involve disclosing the potentially incriminating evidence of the passcode itself. The passcode itself could be independently incriminating, at least in some cases. Imagine a conspiracy case in which members of the conspiracy use a common passcode. Proof that a suspect used that exact passcode on his own phone would be incriminating evidence, as it could help to show membership in the conspiracy.
Because the passcode itself could be incriminating, the smart way to limit the Fifth Amendment problem is for the government to ask for an order compelling the target to enter in the passcode rather than to divulge it to the police. That way, the government gets the unlocked phone but never gets the passcode. If the defendant has to enter in the passcode rather than tell it to the police, the testimonial aspect of complying would only be admitting knowledge of the passcode, which would very likely be a foregone conclusion in a case where the phone is used heavily by that person. But the government didnt ask for that here, so the court didnt consider how the Fifth Amendment would apply in such circumstances.
Notably, the court does address in dicta whether it would be incriminating for the defendant to hand over the unencrypted video believed to be on the phone. But forcing the defendant to hand over the unencrypted video is quite different from having him enter in the passcode to unlock the phone. Being forced to enter in the passcode to unlock the phone amounts to being forced to say, I know the passcode for this phone. On the other hand, as the court recognized, being forced to produce the unencrypted video amounts to being forced to say much more, such as I admit that the video exists; I admit that this is the video; I know where that video is; and I admit that I know what video youre talking about. Being forced to produce the video raises a host of Fifth Amendment issues that merely entering in the passcode does not.
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Volokh Conspiracy: Virginia state trial court ruling on the Fifth Amendment and smart phones
A person suspected of a crime cannot be compelled to divulge to authorities the passcode that would unlock his smartphone. To allow this would be a clear violation of the Fifth Amendment to the Constitution.
But a fingerprint doesn't share those same protections. At least according to a recent ruling from a Circuit Court judge in Virginia, who found that compelling a suspect to unlock his fingerprint-protected smartphone is just fine and dandy.
There's some logic here, but it's pretty badly flawed. The thinking behind the decision: The Fifth Amendment to the Constitution states that an individual cannot be forced to testify against himself. As such, compelling someone to fork over a smartphone's passcode -- which would amount to testimony -- would violate the Fifth Amendment.
But a fingerprint, the judge said, is another story. It's more like a key, which the law has long allowed authorities to obtain from a criminal suspect.
While one can understand the legal distinction that forms the basis for the ruling, it doesn't long hold up under scrutiny.
The Fifth Amendment states, in part: "No person shall be ... compelled in any criminal case to be a witness against himself." This is the right that people are invoking when they refuse to testify on the grounds that they may incriminate themselves.
So legally, a passcode is a kind of testimony, but a key isn't.
Which is fine as far as it goes. But this is exactly where the judge went wrong.
A fingerprint can be akin to a key -- or not. In the matter at hand, what it is, in effect, is a replacement for a passcode, which is information that used to be inside the user's head. If we'd once unlocked our phones with physical keys -- like those that open a door or start the car -- the reasoning would make sense, as the fingerprint would be a replacement for same.
But that's simply not the case. We used to unlock our phones with information in our heads. And that information was protected by the Fifth Amendment. One's fingerprint, simply a replacement for the old memorized pass code, ought reasonably be afforded that same protection.
See the rest here:
Editorial: Applying the Fifth Amendment in the era of smartphones
All Your Fingerprints Are Belong To Us: iPhone Users Forfeit Fifth Amendment
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