Court Can Compel You To Unlock Your Phone – If It Is Locked With Your Fingerprint

Authorities in L.A. obtained a search warrant compelling the girlfriend of an alleged gang member to press her finger on an iPhone to unlock it because they wanted to see what was in it.

Whether this violates the 5th amendment or not is in dispute and this was an L.A. court – likely a district court.  This  certainly is not the Supremes, but the Supreme Court has ruled in the past that the police can search phones with a warrant and compel someone to provide their fingerprints, but that does not mean that you can join the two.  They have also ruled, in 2000, that a person cannot be compelled to divulge the combination to a safe.

The process of unlocking the phone may say something about whether this person had control of the phone and therefore has some implications regarding crimes that may be revealed based on looking in the phone, but if this phone belonged to her boyfriend, by unlocking it, she might be contributing to convicting herself.

Other legal experts say that giving the police the finger is different than compelling testimony, so maybe it does not violate the 5th amendment.  This is going to take a lot more time to sort out.

One of the interesting parts of this is that an iPhone will lock after 48 hours so that even with a finger press, the phone won’t unlock without a password.  If the person refused and went to court to argue the point and that process exceeded the 48 hour window, I am not sure what would have happened.  I also don’t know if you can make that window, say, 1 hour instead of 48 hours.

IF this is worrisome for you, then there is a simple solution – don’t use your fingerprint to unlock your phone.

In another unrelated case, a man in Philadelphia has been in jail on contempt charges for the last 7 months for refusing to decrypt two disk drives that the cops think contain child porn, but other than they think it does, it does not appear that they have any actual evidence that it does.

This is another case, like the Apple-FBI case, where the judge invoked the 1789 All Writs Act to compel the person to assist the government with unlocking the drives.  The drives are protected by Apple’s FileVault software, but that is really not relevant.  Encryption is actually the issue.

The question at hand is whether (a) a person can be compelled to divulge his password and (b) whether a judge can use the All Writs Act to try and compel him to do so.  Given that he is willing to go to jail for at least 7 months, he is a stubborn fella – or there is child porn and he knows that if he decrypts the drives he will be in real trouble.  This person has never been charged with a crime – before or now – and the case is being appealed.

Who knows when this will be resolved – either by the courts or Congress.

Information for this post came from the L.A. Times.  The Philadelphia case can be found on Ars Technica.

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