The Finger Swipe Order

fingerprint reader photo

Image by Andri K

Did this judge just order a criminal defendant to testify against herself?

Things you might consider relevant (or not):

  • She cannot be ordered to disclose her digital password.
  • She can be ordered to give a physical fingerprint.
  • She eventually plead “no contest,” but the order was made before she entered any plea at all.
  • The warrant was issued after the defendant was arrested.

I’m really on the fence here, but haven’t the time to do any scholarship of my own to back up an opinion one way or the other. So have fun, y’alls.

Image by Andri K

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41 thoughts on “The Finger Swipe Order

  1. My first thought is i don’t see how this is different then a person having to give blood or dna as long as the court orders it.

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    • Because she’s unlocking a constitutionally protected sphere of intense privacy, rather that providing biometric information usable only for the purpose of testing against physical evidence.

      I think we would feel differently about court-ordered DNA swabs if they were taken to perform Gattaca-esque personality analyses to determine if the suspect had a “violent” genome.

      (to make the obvious explicit: my view is finger-unlocking should be treated under exactly the same rules as divulging a keyed-in password, because both are functionally equivalent actions, just as you can’t get around the 5th amendment by saying that the questionee can simply nod instead of speak)

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      • What if the phone is being unlocked to find specific evidence of a crime? As in , are there pictures of the defendant holding a gun to a person and saying “give me all your money.” If there is a warrant it shouldn’t and won’t be for a fishing expedition into everything but targeted at something the cops have reason to think they will find.

        DNA and blood should also be considered something pretty darn private. I know i do. But we allow the coppers to take some.

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          • Right.

            All of this assumes there’s been a valid search warrant allowing the police to search the phone, which is why my first answer was perhaps too hasty.

            The issue is: assuming the police are legally allowed to search the phone, how can they compel you to unlock it?

            We all seem pretty convinced they can’t compel you to say the 4-digit code. I suspect we likewise feel strongly they can’t compel you to touch the appropriate 4 digits silently. But we now have a ruling that they CAN compel you to touch the fingerprint button silently.

            Which certainly feels wrong, but likely has no constitutional solution short of calling that touching “speech” or “testimony” and putting it within the 5th amendment. Which feels at least as wrong as other tortured overuses of the definition of speech.

            Of course, in functional political times the solution to an undesired outcome that isn’t protected by the constitution would be legislative…

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  2. Just by coincidence I happened to listen to a piece on Great Courses Radio (XM Insights channel) as I was driving last night about the Apple vs FBI thing. This case you reference came up in that piece.

    So it seems this is an evolving area of case law. The basic principles in play being the Fifth Amendment protection against self-incrimination vs the power of a judge or grand jury to compell the presentation of physical evidence. The controlling principle at present being that speech cannot be compelled while physical evidence can, and then where does something like an encryption key fall in those categories? A finger swipe? Even more murky.

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  3. When considering these matters, I think it is safer to go for the side of the accused than against the accused even though that isn’t the popular position. There is a big difference between ordering a defendant to be fingerprinted and having the defendant put her thumb on a phone that might contain evidence against her. With a traditional fingerprinting, the government are just seeing if your fingerprints match those on hopefully lawfully seized evidence. They aren’t asking you to give up evidence that might incriminate you without a warrant. When your asked to put your finger on your phone to unlock it than you are being asked to potentially incriminate yourself.

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      • Than they are in tough luck unless they get a warrant to open the phone and find someway to do it without the defendant’s help. You can’t ask a person to incriminate themselves.

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        • But you actually can. You can require a defendant to allow biometrics to be collected. Hell, you could probably build a device that could take a regularly-collected fingerprint and unlock a phone with it.

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    • Also, in general, fingerprints taken at time of arrest are primarily for seeing if you’ve been living another life that already has a criminal record. Tying you to lifts from a crime scene might affect how confident they are about you as a suspect, but if it’s the biggest bullet left in the gun at the end of the investigation, they’re unlikely to try to build their case with just print matching as a foundation. Unless you were kyping microscope slides, poster paint, and flour…

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      • This really comes across as no brainer to me. The Supreme Court already said that the police need a warrant to search cell phones. This was a unanimous decision. The Fifth Amendment makes it unconstitutional to force people to incriminate themselves. This includes ordering them to turn over evidence without a warrant. Its established that you can’t ask people to give over their passcode for their cellphone even if you have a warrant to search it. The purpose of having a person unlock it via fingerprint is the same as asking for their pass code, to get into the contents of the cell phone. The obvious answer would be that asking a person to unlock their phone by providing their fingerprint is asking them to incriminate themselves because of the purpose of the search.

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        • Right, but the 5th amendment issue only comes up if the police have obtained that warrant to search the phone.

          So now we’re talking only about whether and how you have to assist the police in executing a valid search warrant.

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      • This is very true. Fingerprints are useful primarily because it’s not that difficult to match good prints (those taken at a police station when you’re booked) against other good prints and because most real crimes are committed by a relatively small number of diligent repeat offenders. Matching a latent is much harder and brings a bunch of technical problems along with it. It’s certainly doable, but not as easy as most CSI viewers would guess.

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        • Current technology is getting to the point where the best algorithms are essentially just as good as a human examiner at making an identification based on a latent lift. I wouldn’t be surprised if the FBI, in particular, is in the process of closing a significant number of cold cases when they run the archives against each other with cutting-edge matching – i.e. “yep, we were right that Bloggs did it, too bad he died in ’03”.

          But even then, it’s one thing to make an identification within the Crime Lab to give the investigators some warm fuzzies. And something else entirely to prepare an exhibit to explain, from first principles, to twelve people chosen for not having any prior knowledge, all the science that goes into linking two prints together – without either losing the audience or setting off false positives in bullshit filters.

          N.B. My last employer is the guys who provide that system for the FBI. I liked the job (although some of our customers were starting to grate), but disabusing people of their notions based on CSI, Bones, and the X-Files is something I’m glad to be doing without.

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  4. Didn’t Maryland v. King find that the cops can take DNA from people without their consent (or without a warrant, for that matter), comparing it to fingerprinting a person?

    We’ve established a precedent.

    If you actually read the 4th Amendment, you’d understand that it says something completely different than what you think it says.

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    • Fourth Amendment:

      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.

      I’m actually more interested in the Fifth Amendment here:

      No person shall … be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

      For Fourth Amendment purposes, it seems pretty clear that examining the contents of a cell phone is a “search.” Is it an unreasonable search? For Fifth Amendment purposes, is compelling the defendant to swipe the phone to unlock it causing her to be a witness against herself? If the information on the phone has value, and part of that value derives from other people not knowing what the information is, then is taking that information a deprivation of property without the process due, and is it diminishing the value of that property without just compensation? (Add in the Fourteenth Amendment if it’s a state-level law enforcement agency instead of the FBI.)

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      • What conduct are we seeking to prohibit by the Fifth Amendment? Torture, coercion, government invasion of the accused’s private thoughts, I would think. The bits and pieces of ourselves that we leave behind are much less protected.

        In comparison, what conduct are we worried about in forcing the phone swipe? Is it really any different than any other common method of collecting evidence, like giving fingerprints or more protected bodily fluids (blood, urine, semen, DNA)?

        I don’t think that the content of the phone is due any more protection than the content of a safe. The government can’t torture you to surrender the combination to the lock, but they can drill the case and read the contents. I just don’t see how the Just Compensation clause would apply in a criminal investigation.

        Frankly, I see this case as one of weak security against a government agency. Remembering passwords may suck, but at least the government can’t get your password with just a thumbprint.

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  5. I don’t know US law well, but I would lean towards “no”. Getting a warrant to require someone to unlock their phone so you can search it doesn’t seem meaningfully different from getting a warrant to require someone to unlock their door so you can search their house. If you get a search warrant for someone’s house, and you find a journal in their house where they’ve written down an account of all their crimes, that doesn’t mean you’ve forced them to self-incrimiate, does it?

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    • More or less with Katherine on this one.

      Warrant to use a biometric to unlock your phone? Probably okay. Warrant to require you to disclose an encryption password? Probably not okay.

      The analogue of the diary makes sense to me. If you have a warrant, you can search the house and find it and use it in your investigation. If the owner encrypted it, you can attempt to break the encryption and if you succeed, you can use it in your investigation. You can’t require the defendant to decrypt it for you, though.

      I don’t regard your fingerprint as a private detail, you leave it everywhere you go in public. I understand the argument that it is, though.

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  6. Did this judge just order a criminal defendant to testify against herself?

    Yes.
    Will it likely stand up on appeal? Yes.

    How far we’ve fallen.

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  7. Well, I can choose to have a different password, but I can’t choose to have a different fingerprint, which makes me think that this probably isn’t protected under the Fifth Amendment.

    However, it’s pretty clear that a suspect does not need to be “helpful”. So there are some interesting scenarios here:

    “Swipe the phone”

    “With what?”

    “With your finger”

    “Which one?”

    “Ahhh, each one in turn until it unlocks”

    [And now I’m thinking of a mobster who used the preserved finger he cut off someone else to unlock his phone, and never mentioning to the police.]

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