On October 16, 2016, Forbes reported on a court filing from May 2016, detailing a Department of Justice search warrant request. This memo in support of a search warrant wasn’t just for a search of the house, nor even of unlocked phones. The memo in support of the warrant in question sought permission to “depress the fingerprints and thumbprints” of everyone at the search location believed to be in connection with the search (in other words, everyone at the search location). The memo cites various phone protections of the devices – such as Apple products requiring the use of a passcode after five failed fingerprint attempts and use of a passcode after more than 48 hours without unlocking the phone – as reasons why use of fingerprints to unlock phones during the search should be granted. Why wait to gather other evidence during a search if you don’t have to?
This memo comes on the heels of the FBI’s attempt to force Apple to hack into an iPhone owned by one of the alleged shooters in the San Bernadino terrorist attacks of December 2015. To refresh your memory, despite obtaining an order compelling Apple to hack into the suspect’s iPhone, the tech company refused. Apple stated the software the FBI wanted Apple to create to override the phone’s security features would open a “backdoor” into all iPhones around the world. The battle was cut short when the government announced it had found its own way to hack into the phone without Apple’s help, a turn of events Apple was not particularly happy to hear.
Is this newly surfaced memo in support of a search warrant as unprecedented as Forbes reports, or even that surprising? The FBI has already announced that it was able to hack into the San Bernadino suspect’s phone, and by inference, any other iPhone the Bureau may feel the need to dig into. A Los Angeles court granted a search warrant in early 2016 compelling a woman with Armenian gang connections to unlock her phone with her fingerprints. Government access to personal data goes beyond smartphones and criminal investigations already; earlier this month Reuters reported that Yahoo secretly scanned emails in real time “for specific information provided by U.S. intelligence officials.” With so much information already being provided to the federal government, one might be so desensitized as to wonder if one more fingerprint (or a household of fingerprints) is truly shocking.
That it was a household of fingerprints seems to be the main difference between the above mentioned instances and the search warrant in question.
Though the memo attempts to limit their search to those “reasonably connected with the search”, there is no reason to believe that this would not include all persons present at the property while the search was conducted.
While the search warrant itself has not surfaced, Forbes reports that the search has apparently occurred.
Potentially more frightening is the part of the memo not having to do with fingerprints. The memo in question partially relies on Virginia v. Baust, a Virginia Circuit Court ruling which held that a criminal suspect “cannot be compelled to produce his passcode to access his smartphone but he can be compelled to produce his fingerprint to do the same.” This holding was based on the premise that passcodes fall under 5th Amendment protections against self-incrimination, while fingerprints do not. However, the memo states that the warrant includes “seizure of passwords, encryption keys, and other access devices that may be necessary to access the device” with little explanation as to how this access would not violate the 5th Amendment. While the prevailing logic from Virginia and a federal District Court in Pennsylvania is that suspects do not have to reveal phone passcodes to police, there is not yet any Supreme Court precedent on the matter, leaving the Department of Justice seemingly able to cherry-pick arguments from various states and circuits as it pleases in order to obtain the type of search warrant most suitable to the Department’s needs.
Between search warrants for fingerprints and government hacking of suspect’s phones, perhaps the best choice we have at the moment is to choose a cell phone-less life until further notice.