A Northern California federal judge ruled last week that police can’t force suspects to unlock their phones with their fingers, eyes or face, even with a warrant, because it amounts to the same type of self-incrimination as being forced to hand over your passcode.
If other courts apply her decision, it could set an important precedent in Fifth Amendment interpretation 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). As Forbes reports, Judge Kandis Westmore ruled that compelled testimony is compelled testimony, regardless of whether it’s a passcode uttered aloud or a forced finger swipe. In this day and age, multiple forms of authentication unlock treasure troves of personal data, she wrote. 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.
Judge Westmore wrote the decision in denial 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. Police had two suspects, but they wanted the go-ahead to compel anybody located on the same premises to unlock their devices, be it with a finger/thumb, face or iris. Judge Westmore denied the request for a search warrant on Fourth and Fifth Amendment grounds. She agreed that the officers had probable cause to search the suspects’ property, but not to unlock any and all devices or compel people to do so. That would be a fishing expedition, she said. The government can’t be permitted to search and seize people’s devices just because they happen to be present during a lawful search.