On January 10, 2019, Magistrate Judge Kandis Westmore of the U.S. District Court for the Northern District of California denied a search warrant for an Oakland property. Her ruling has far-reaching effects because the warrant had to do with a Facebook extortion crime, in which the victim was told to pay or end up having a humiliating video released.
The police wanted to raid the property and force anyone on the premises to open up their phones via biometrics – fingerprints, iris or facial recognition. Judge Westmore ruled that the government’s request not only violated the suspects’ Fourth and Fifth Amendment rights, regarding unreasonable searches and self-incrimination, but was also “overbroad.”
Translation: the officers wanted to conduct the raid and then force everyone present on the property to unlock their smartphones using their faces and thumbprints, and Judge Westmore, was not going to okay that. She did write that her decision might be different in the future should law enforcement request a narrower warrant.
Technology Outpacing the Law
In her ruling, Judge Westmore noted that “The challenge facing the courts is that technology is outpacing the law.” The courts have an obligation to safeguard constitutional rights and cannot allow those rights to be diminished because of technological advances, she wrote, adding that citizens do not contemplate losing their civil rights when using new technology.
She pointed out that the government may obtain Facebook messenger communications under the Stored Communications Act, but trying to do an end-run around Facebook by “infringing on the Fifth Amendment's privilege against self-incrimination” was unconstitutional and an abuse of power.
Fingerprint Use for Identity vs. Data Access
Judge Westmore’s decision is just one of several recent decisions regarding smartphones and a suspect’s Fourth and Fifth Amendment rights. In 2017, a Chicago judge denied the government’s attempt to make people in a building use their fingerprints to open devices in a federal child pornography investigation, while admitting investigators had probable cause to search the building. The government has long been able to use an individual’s fingerprints for identification purposes. The ability to unlock a smartphone via fingerprints is relatively recent.
Unlike identification, however, the use of fingerprints to unlock smartphones and similar devices allows access to the individual’s electronic data. As Judge David M. Weisman wrote, “This Court agrees that it is the context in which the fingerprints are taken, and not the fingerprints themselves, can raise concerns under the Fourth Amendment.”
Face, Touch ID, and Alphanumeric Passcodes
The Fifth Amendment already protects those using alphanumeric passcodes on their devices. Being forced to tell a passcode is considered self-incrimination, but that was previously not the case with Face and Touch ID. Judge Westmore’s decision should provide smartphone owners with the same protections for Face and Touch ID as those with old-school alphanumeric passcodes.
“If a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device,” according to her decision.
Judge Kandis’ decision should be lauded for standing up for obvious Constitutional rights in contrast to the general trend of appellate courts rubberstamping any behavior by law enforcement no matter what the cost to civil rights.