Apple CEO Tim Cook announces the new iPhone 7 during an event to announce new products, in San Francisco, in September 2017. (AP Photo/Marcio Jose Sanchez, File)
Earlier this year, FORBES revealed a search warrant that allowed police to walk into a building and unlock all phones inside that could be opened with a fingerprint, including iPhones with Apple’s famous TouchID feature. Not long after, multiple other warrants allowing similar access were uncovered. At the time, lawyers declared the warrants overly broad. But, in what may be a landmark decision, a federal court in Illinois has determined that feds could not proceed with such a search, saying the government needed to be more specific about those devices if they want to use such warrants.
In an opinion from magistrate Judge M. David Weisman (published below), the court denied the government’s application for that request, even though the police sought to search the phones as part of an investigation into child pornography. Even though it was determined there was “no protectable Fourth Amendment interest in the print itself,” but believed that there were privacy implications for this particular way of using fingerprints of unnamed individuals within a property.
“This Court agrees that the context in which fingerprints are taken, and not the fingerprints themselves, can raise concerns under the Fourth Amendment. In the instant case, the government is seeking the authority to seize any individual at the subject premises and force the application of their fingerprints as directed by government agents. Based on the facts presented in the application, the Court does not believe such Fourth Amendment intrusions are justified based on the facts articulated,” Weisman wrote.
He raised Fifth Amendment issues around self-incrimination too. Previous courts had argued that fingerprints were not testimonial and did not constitute a form of communication, so Fifth Amendment protections didn’t apply. However, the Illinois court said that “with a touch of a finger, a suspect is testifuing 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.”
There were other issues that were specific to the case. Wesiman said the warrant lacked any detailed information about those inside the premises other than the name of an individual believed to live there, whilst being vague about the devices inside, simply noting it was “likely that Apple brand devices” were inside.
And it was clear that the govemment’s request for forced fingerprinting would not always be “problematic.” If the government was able to provide enough evidence that the information within phones inside a building were linked to a crime, Fourth and Fifth Amendment protections may not stand.
Regardless, this is the first known case of the government being prevented from carrying out such broad searches.
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