There's mounting evidence showing the government is winning in its fight to force citizens to hand over smartphone passcodes and fingerprints.
Going against previous rulings, last week a Florida court of appeals decided a suspect could be compelled to hand over their iPhone passcode. And the decision comes at a time when Californian police are pushing on in earnest to force fingerprints onto cellphones to crack them open, according to numerous court documents uncovered by FORBES. Together, they mark significant moments in the government's quest to get access to encrypted smartphones, which have become increasingly difficult to search devices, as highlighted earlier this year when the FBI sought access to the iPhone 5C of San Bernadino shooter Syed Rizwan Farook.
Florida's big judgment
In an opinion filed on 7 December, first spotted by Courthouse News, it was revealed an Aaron Stahl was accused of using his iPhone 5 to take pictures up the skirt of a woman whilst she was shopping. Though Stahl exited the store before security arrived, law enforcement tracked him down via license plate records, according to the court filing. The document claimed Stahl, who was charged with video voyeurism, initially agreed to have the iPhone searched, but once it was retrieved from his property, he rescinded that permission.
The state continued to try to access the device, but decided it could do little to retrieve data due to Apple's security protections. The trial court also told prosecutors Stahl could not be compelled to hand over his four-digit passcode, as the Fifth Amendment privilege against self-incrimination applied. But last week's order reversed that decision.
Prior to that, courts had stated forcing users to hand over passcodes was a violation of the Fifth Amendment, protecting suspects from self-incrimination. In Florida's decision, the judges looked back to the U.S. Supreme Court’s 1988 Doe v. U.S. decision, in which it was determined an accused could be "forced to surrender a key to a strongbox containing incriminating documents," but not "compelled to reveal the combination to his wall safe."
The appeals court judge Anthony Black, writing for a three-judge panel, challenged that there was no clear difference between surrendering surrendering a key to a strong box and handing over a passcode. Black wrote: "Providing the passcode does not 'betray any knowledge [Stahl] may have about the circumstances of the offenses' for which he is charged," Judge Anthony Black said, writing for the three-judge panel. "Thus, ‘compelling a suspect to make a nonfactual statement that facilitates the production of evidence’ for which the state has otherwise obtained a warrant based upon evidence independent of the accused’s statements linking the accused to the crime does not offend the privilege."
Marina Medvin, of Medvin Law, argued Supreme Court precedent (in particular Boyd v. United States (1886) and Schmerber v. California (1966)) showed courts should explore what the government seeks to find when it compels an accused, not just how. "Once again we see a court that only analyzed how information is obtained, as opposed to what information was obtained. This is inconsistent with Supreme Court precedent," Medvin said.
"Simply put, if the subject of the desired information is communicative or testimonial in it's nature, then the Fifth Amendment bars the government from being able to compel a person from providing it." Black argued Stahl's passcode was not testimonial evidence, but "a case of surrender."
"Instead of trying to contravene the privacy laws of this nation, our governments would better serve society by investing their funds into technical advancement that will allow the police to search these phones through lawful means, as opposed to investing their taxpayers' moneys into litigation aimed at diminishing our privacy laws."
No protection for fingerprints either
Courts have traditionally gone the other way in regards to fingerprint unlocking, allowing searches of suspects. Indeed, according to numerous court documents found by FORBES, Californian cops have deemed it acceptable to do more than just demand one person hand over their biometric data to unlock their phones.
Those warrants (published below) have allowed police to enter buildings and force any person within who owns a fingerprint-enabled device to apply their finger or thumb to the phone to unlock it. The warrants also allow police to demand passwords, passcodes or whatever key allows access to whatever digital device is found inside, regardless of who owns it. It's semi-targeted, naming individuals within warrants, but sometimes allowing the unlocking of devices of anyone within the premises.
In one example, a warrant "seeks the authority to compel the use of the fingerprint and/or thumbprint of every person who is located at the SUBJECT PREMISES during the execution of the search and who is reasonably believed by law enforcement to be a user of a fingerprint sensor-enabled device that is located at the SUBJECT PREMISES and falls within the scope of the warrant." That subject premises is an apartment in a block in Santa Ana, California, and the search was conducted as part of an investigation into the Rolling 20's Crips gang, whom the cops believe were selling heroin and firearms.
Similar language was used to request the same across other properties. Though it wasn't executed, another warrant, issued as part of an investigation into alleged harassment of an FBI agent, allowed the depression of fingerprints of anyone across two separate properties, not just one.
Californian cops have been using language like this when getting permission to depress fingerprints... [+]
FORBES first broke the news that one such warrant, again in California, had been signed off back in April. It seems that, at least in California, the feds are normalizing broad searches like these.
And whilst the Florida case won't bind other U.S. courts into following suit, Medvin noted it's part of a wider movement to permit such access. "But persuasion can be strong. Look at what's happening this year - we are seeing a trend of courts coercing self-incrimination in smartphone cases. This is alleviating the burden on police departments, the burden to invest in intelligence efforts to recover digitally stored evidence, at the expense of diluting the 5th Amendment privilege against compulsive self incrimination and privacy in general."
