Apple’s fight with the feds over unlocking the San Bernardino shooter’s phone has dominated the headlines, but a judge demanded a woman’s fingerprint be used to unlock her iPhone—a first in a federal court case, reports the Los Angeles Times.
Paytsar Bkhchadzhyan’s phone was seized from a home in Glendale, Calif., associated with her boyfriend, an alleged Armenian gang member. Less than an hour after Bkhchadzhyan’s arrest, a judge ordered the 29-year-old to unlock her iPhone through Apple’s Touch ID.
She later pleaded no contest to a felony count of identity theft, but the law is murky here: Police can get a warrant to search a phone and can take fingerprints without court approval.
But whether they can demand fingerprints to unlock a phone is unclear, per Engadget. An expert says Bkhchadzhyan’s phone may have contained incriminating information, meaning the court order violated her Fifth Amendment right in essentially forcing her to testify.
“It’s the same as if she went home and pulled out paper documents,” she says. According to a 2014 court ruling, however, fingerprints are considered “real or physical evidence,” the extraction of which doesn’t violate the right against self-incrimination.
Pass codes, on the other hand, are a form of knowledge and are generally protected. “This is why I tell my criminal procedure students that they have more protections if they use a pass code rather than fingerprint to guard entry to their phones,” a law professor tells Ars Technica.
“While I don’t conduct crimes on my cellphone, I still decline to use my fingerprint out of an abundance of caution!”
Memo to crooks: Avoid fingerprint IDs — especially when it comes to the iPhone.
While the FBI was unable to crack the passcode on the San Bernardino shooter’s iPhone, the feds are having a far easier time busting the criminally stupid who use Apple’s fingerprint-driven “Touch ID” sensor.
When the newfangled feature was introduced to the iPhone 5s in 2013, it was billed as a security enhancement — a beefier protection from would-be snoops than a numerical passcode.
But the technology backfired badly for an accused LA gangster in February when a federal judge ordered the suspect’s 29-year-old girlfriend to use her fingerprint to open her iPhone for investigating cops.
“If you don’t want the cops riffling through your phone, better use the passcode than a fingerprint to lock it,” said David Shapiro, a law professor at Northwestern University in Chicago.
The judge’s move — unnoticed even as the epic court battle raged between Apple and the FBI over access to the San Bernardino terrorist Syed Farook’s iPhone — allowed the feds to sidestep thorny legal issues they had faced in the notorious Farook case.
Here’s the rub: Unlike a passcode, a fingerprint can’t be considered a form of speech. As such, accused criminals can’t invoke the Fifth Amendment to avoid pressing flesh to open their phones.
“The passcode requires an act of providing information out of your mind, whereas a fingerprint isn’t a statement of any sort, so it’s hard to see that as self-incrimination,” Shapiro said.
Some legal experts and privacy advocates disagree, arguing that forcing a suspect to open a phone with a fingerprint is akin to producing information and authenticating its contents.
Either way, the fact that smartphones are accumulating unprecedented details about people’s lives could eventually result in tighter restrictions for police looking to obtain search warrants for them.
“Courts are starting to reevaluate some long-settled legal issues because of the notion that smartphones are just different in the amount of information they expose about our lives,” says Jennifer Rodgers, executive director at the Center for the Advancement of Public Integrity at Columbia Law School.
A Virginia judge ruled in 2014 that police can force users to unlock their phones with their fingerprints, but the case in February appears to have been the first time federal law enforcement has used that power.
So, should smart crooks disable fingerprint-ID altogether and deal with the hassle of passcodes?
“For sure!” says Rodgers.