In January, a Northern California federal judge ruled that police can’t force suspects to unlock their phones with biometrics, even with a warrant, because it amounts to the same type of self-incrimination as being forced to hand over your passcode.
Now, Law360 has uncovered a search warrant that says the opposite: in the 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 suspect, Robert Brito-Pina, is suspected of gun trafficking. He’s a convict, which makes gun possession illegal.
It’s unclear whether the search has been executed yet, but the ATF has until 2 May to search Brito-Pina’s apartment. The warrant covers any records, receipts, all mobile phones, and all of their content, including text messages, email, apps, internet history, voicemails, photographs or videos relating to the acquisition of firearms or ammunition made since 1 July 2018.
In the warrant, ATF special agent Robert Jacobsen goes into great detail about a web of illegal, interstate gun trafficking that allegedly led to Brito-Pina. ATF agents have to get into any phones that he may have used, he said, given that there’s a window of time to use to unlock iPhones with Touch ID before they require the passcode.
Attempting to unlock the relevant Apple device[s] is necessary because the government may not otherwise be able to access the data contained on those devices for the purpose of executing the requested search warrants.
For some reason, the warrant specifies that it doesn’t apply to computers in the apartment: agents won’t seize or search any computers they find/found.
The agent said that Brito-Pina’s phone is likely to contain a lot of evidence. In fact, the investigation that led agents to Brito-Pina was in large part enabled by information gleaned from other people’s phones, including text messages, drop-off locations stored in the Waze navigation app, and photos of illegal guns taken by people on their own phones – often featuring them posing with the guns.
He referred to what agents say they found on another suspect’s phone:
Collins communicated with Brito-Pina via cell phone regarding the sales and purchases of firearms.
This is yet another volley in the back-and-forth of courts’ interpretation of the Fifth Amendment and the debate between compelling suspects to use “what they are” (i.e., forced use of their bodies) vs. “what they know” (i.e., forcing suspects to unlock their brains to get at their passcodes).
The earlier decision from California denied issuance of a warrant to police who were investigating alleged extortion in Oakland, California. The suspects allegedly used Facebook Messenger to threaten a man with the release of an embarrassing video unless he coughed up money.
Over the years, there have been many cases that have fallen on opposite sides of the question with regards to the legality of finger-forcing. As we wrote with regards to the California case that found compelled testimony to be against the Fifth Amendment, be it turning over a passcode or swiping a finger, there’s no guarantee that other courts will choose to apply this most recent forced-biometrics-is-OK ruling in Massachusetts.
In this Massachusetts decision, the unlawful trade in weapons – allegedly by a man convicted of assault, at that – is very serious. So is the potentially unconstitutional act of forcing biometric device unlock.
But Judge Dein’s decision doesn’t open any doors to forcing finger unlock onto any random person nearby the search site. She specifies that ATF agents may search the contents of any mobile phones, not by forcing just anybody’s fingers onto a Touch ID sensor, but by pressing Brito-Pina’s fingers to unlock the device.
This doesn’t sound like an earth-shattering decision: rather, it sounds like yet another round in an ongoing debate wherein courts are trying to keep up with developing technology. Readers, your thoughts?
13 comments on “Cops can try suspect’s fingers on locked iPhones found at crime scene”
Anyone with a desire to thwart law enforcement should have learned by now not to keep sensitive info on their phones. They probably shouldn’t be using mobile phones in the first place for those activities. If you do, there is no reason to keep data on such a device for longer than absolutely necessary because you know it will be an item of interest in any investigation.
Passcodes or passwords usually cannot be compelled so any person who chooses to use biometrics to secure their devices instead of a passcode is kind of accepting that the cops can and will be able to search the device if they claim a compelling reason to do so. Further, learning is hard apparently – most of those who feel they have a need to employ data security on their mobile devices have not taken the time to learn how to do that effectively or they would use encryption that is independent of the operating system on the device.
Clearly technology and the practices of 3rd party data collection has advanced beyond the point where the average user of said technology can understand it. It is hard to circumvent a strong encryption specific password and 2FA when used on that 128Gb SD card. That and the fact that most people are just too lazy for their own good.
right? Even Saul Goodman knows to have a desk full of burners.
No Warrant, NO search! Period! No judge, no government official, no citizen has either the Constitutional authority nor moral imperative to nullify our inalienable and god given Constitutional Rights to protection against warrant-less or random searches by any means, let alone by Judicial fiat as clearly happened here.
The 4th Amendment contains NO exception, NO exemptions, and NO limitations of the rights of the citizens to its protection…..(accept in times of war or armed insurrection)
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Another Judge, another ruling, another outright violation of the Constitution. The fourth Amendment to the Constitution was specifically written to among other things, STOP the government from conducting random searches using a general warrant or no warrant at all. Remember, that in order for ANY government search to pass Constitutional muster, it must meet ALL the requirements in the 4th Amendment.
It continues to amaze me that hundreds of thousands of words are written by the media related to the 1st, 2nd, and 4th Amendments each year, and yet, they never, ever, include the actual Amendment in its entirety in the discussion. Such disclosure would of course invariably render moot any attempts by the media to support/justify 99% of the government actions in this regard for the simple reason that even the most disinterested lay person would comprehend that such actions are unconstitutional.
Judges swear an oath to uphold and defend the Constitution and Bill of Rights. In fact, in a nutshell that IS their job. Critical thinking and plain old common sense dictate that when a Judge violates the Constitution and Bill of Rights in such a clear and unambiguous manner they should be impeached, arrested and thus charged. We are after all a Constitutional Republic of the People, by the People and for the People.
It’s almost as though you didn’t read the warrant that was issued in this case. In particular, the requirement of the Fourth Amendment about “particularly describing the place to be searched, and the persons or things to be seized” was handled with particular thoroughness. (The way in which the agent requesting the warrant determined where inside the building Apartment #3 was located was particularly particular.)
In fact, the warrant was prepared with such particular care that you can just about work backwards from it and figure out the requirements of the Fourth Amendment that it set out to satisfy.
There’s not much point in blasting us for not repeating the text of the Bill of Rights in our article – after all, the text is generally availble and widely known – if you aren’t prepared to read the warrant in this specific case before commenting on it, which is actually what the article is about.
> For some reason, the warrant specifies that it doesn’t apply to computers in the apartment: agents won’t seize or search any computers they find/found
Any ambivalence between violating privacy and catching crooks is here lost. Why push a civil rights boundary known to be in flux and yet intentionally preclude other potential evidence?
The request for the warrant makes that pretty clear – the agent didn’t ask for access to computers, but did explain the significance of phones in the investigation so far. The goal of the search seems to be to establish the last step in one or more allegedly illegal gun sales. So the magistrate put in various explicit limitations, which seems a reasonable way to keep things limited to “reasonable search and seizure”.
To many people, I’d say the civil rights boundaries around seizing computers in general are much more of an issue than how or if you can be forced to decrypt data on them.
Ah, okay. Skepticism rescinded. Eyebrow re-lowered.
To a Brit, seems like this judge did an excellent job (as has the investigator).
I’m a lot more comfortable with a reasonable, constrained balance, than with privacy winning blindly.
What about Android? It’s not like iPhones are the only phones with biometrics.
The agent specifically asked for the right to unlock iPhones. The more precise a warrant, the harder it is to moan that it doesn’t fulfil the “reasonableness” aspect in the US Bill of Rights, I suppose.
That’s presumably also why the magistrate made it explicit in the warrant that only one named person’s fingers could be tried, and that computers were off limits.
The issue here is not about “reasonable search and seizure.” In this case I would say the Government has reasonable cause to request a warrant to search these devices. What is at issue, is does forcing a suspect to give or participate in providing thier biometric to unlock the device constitute self incrimination – which, if it does, would violate the 5th Amendment. What make this a tricky thing is the dual use of biometrics, both as a mechanism for asserting identity and as a secret used to demonstrate consent to access a locked area.
I take no issue with the government searching the devices. They are welcome to use whatever technical means at their disposal and authorized by the court to break the encryption of or locking the device. If they do not have that technical means, then the suspect wins – and so does the preservation of your privacy as well.
Some US magistrates seem to think that fingerprints are “testimony” akin to spoken or written remarks. But others do not, with fingerprints treated like physical keys – they aren’t things you “know” and therefore aren’t protected testimony and don’t fall under the Fifth Amendment.
Could I copyright my fingerprints, so the feds couldn’t use them unless I licensed them to? I’m sure they’d never want to fall foul of the DMCA.