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Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

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Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#231

Post by raxxorrax »

rayiner wrote: post #206
kevin_b_er wrote: post #2

I won't believe this ruling is safe until it goes thru higher levels. The Executive Branch has over the past 2 decades has shown a large propensity for attempts to disregard the 4th and 5th amendments, and I see no change in this posture or the attempts to subvert them with the current political climate.

It’s okay if you think we should not force people to unlock their phones pursuant to a criminal investigation. But it’s disingenuous to paint this as an attempt to “disregard” the 4th and 5th amendments. The Supreme Court in the 1950s and 1960s expanded the scope of those amendments far beyond the text. They turned the 4th amendment into a general purpose “privacy” amendment, even though the amendment doesn’t use tha…

Unlocking your phone does give law enforcement access to more than evidence. Especially since in most cases the existence of said evidence isn't even ensured. What remains is a violation of privacy.

Unlocking a phone is just another fruit of the forbidden tree.

If you look at the last 20 years, giving law enforcement additional competency didn't improve anything.

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#232

Post by pseingatl »

It'll be just a short time before this is overturned. Fingerprints are non-testimonial. So is a photograph of your face. So is a sample of your handwriting. You can be forced to give a handwriting sample. As to polygraphs, at the federal criminal level, they have been approved in only one federal circuit, and then only under limited circumstances. See, U.S. v. Picinonna. Despite this federal non-acceptance, they are widely used at the federal administrative level for security clearances and the like. In the private sector, there are little restrictions on their use. You could also use divining rods, tarot cards, crystal balls and similar implements to discover the truth of a statement if you wanted to. However you can't weight a person down and throw him in the lake to see if he floats.

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#233

Post by rocqua »

arcturus17 wrote: post #221
supernova87a wrote: post #108

I doubt this will hold up. You can be compelled by a court to have your blood withdrawn if a warrant is issued while you're under suspicion of DUI. Why would it not be similarly allowable to have your finger placed on the unlock button? Testimonial privilege (against being forced to testify) is about not being made to say / speak statements against your own prosecution. Speech. Testimony. Having evidence taken is not…

In the eyes of the law, how is this different to being compelled to give your passcode though? Of course it’s easier and they could maybe even unlock a phone with your corpse but in jurisdictions where the law protects the individual’s privacy above all else this shouldn’t make a difference.

Its 'something you know' vs 'something you are'.

In some sense, the issue here is that we use fingerprints as authorization whilst they should be authentication.

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#234

Post by eloisant »

nerflad wrote: post #29

This might be a good time to let others know: Android (at least my OnePlus) has a "Lockdown" mode in the shutdown menu that locks the screen and prevents the usage of the biometric methods. You have to use the password. This is good because passwords have already been hashed out in court and are unequivocally protected by the fifth amendment; you don't have to tell an officer your password (and entering it for them c…

Also, and I think it works on all Android, if you press the fingerprint sensor with the wrong finger 5 times it deactivates it. So just hit it with your pinky or any other non-registered finger.

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#235

Post by rocqua »

darkpuma wrote: post #140
Nasrudith wrote: post #136

Earlier quoted context omitted.

The issue is more related to the intent of the action regardless of the practicalities of it. Essentially the subjecting giving a password is giving their consent to the device to unlock it. Using their iris or facial pattern as something compelled in that context would be distinct from the gunshot residue or blood of a victim which also incriminates them since that is something about them as opposed to being compell…

I'm just not seeing a meaningful distinction between forcibly taking their fingerprint ("something about them") to check against prints found on a gun and forcibly taking their fingerprint ("something about them") to check a smartphone found on the scene. If they have a warrant to check the phone, and if taking fingerprints of the arrested without consent has already been found constitutional, I just don't see a prob…

I'm guessing this ruling is about taking the suspects actual finger and placing it on the scanner. This is different from building a fake finger based on fingerprints and using it to unlock your device.

Consider the password case, you can't be compelled to give your password, but the government is allowed to throw all of their hacking prowess against your device to crack that password. They can even ask you about the name of your first pet to get through security questions. Though they can't compel you to answer truly regarding the name of your first pet.

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#236

Post by rocqua »

IgorPartola wrote: post #181
sathackr wrote: post #80

Earlier quoted context omitted.

The issue arises when the knowledge of the password itself is incriminating. The 5th amendment prohibits forced self incrimination. Forcing a suspect to divulge information that is directly incriminating will not stand constitutional review, regardless of the nature of the information. You have the right to remain silent.

If your password is “I killed him and the body is hidden under my deck” and that’s the literal crime you are being charged with, sure. But your password is usually not an admission of a crime, so that’s not the argument. Even if your encrypted laptop contains evidence, you cannot plead the fifth if the prosecutors know it’s there. As long as they can get a warrant and when they get the data say “see your honor? Here…

> Even if your encrypted laptop contains evidence, you cannot plead the fifth if the prosecutors know it’s there. As long as they can get a warrant and when they get the data say “see your honor? Here is the evidence we knew was there!”, it doesn’t fall under the fifth.

That sounds like the 'foregone conclusion' doctrine.

When it is a 'foregone conclusion' that the data is present on a device, you can be compelled to produce that data by decryption. However, if you are so compelled, the fact that you were able to decrypt that data can't be used against you. So they will need another way to tie you to the data.

An example is if police saw you had classified documents on your computer (by e.g. a video camera) and later confiscate the computer and find it to be encrypted.

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#237

Post by cerebellum42 »

mrunkel wrote: post #222
xfer wrote: post #216

Earlier quoted context omitted.

> 'content stored on the encrypted hard drive matched file hashes for known child pornography content Sounds like BS to me, how can they match hash of encrypted content without the key?

This. It's encrypted data. You can't even see where the files are. I can only surmise that this means that they scanned the content of the hard drives and found data sequences that matched some file hashes of known child pornography.

If that's the case, why do they even need the drive to be decrypted? All they'd have to prove is that the drive was not owned by anyone other than the accused and could then say that there was CP saved onto this drive by the guy.

If they matched the hashes to data on the drive, the files are already on there unencrypted. Could be some space left by a now-deleted unencrypted partition, or maybe some leftover data in a temporary location where the data is saved before being encrypted.

Together with the witness testimony, that seems pretty compelling.

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#238

Post by renholder »

nerflad wrote: post #29

This might be a good time to let others know: Android (at least my OnePlus) has a "Lockdown" mode in the shutdown menu that locks the screen and prevents the usage of the biometric methods. You have to use the password. This is good because passwords have already been hashed out in court and are unequivocally protected by the fifth amendment; you don't have to tell an officer your password (and entering it for them c…

This is assuming you have the time to do so. In the shock and awe practices of law enforcement in the states, no-knock-warrants by SWAT teams at 3am in the morning aren't an unheard of thing. Do you honestly think, in that precise moment, you'll remember to run and grab your phone and implement the lockdown mode before they breach into the premises?

I'd say it's better security practice to only use a passcode and, if you must use any biometrics, use an obscure finger (like the side of your pinky finger or something) - whilst also enabling the the auto-wipe feature after 10 failed login attempts.

IANAL but from what I understand of the current goings on in the states, the police have to tell you which digit to try. Just as a password is protected, knowledge of which digit and how it should be placed is also - technically - protected. Think of it like two-factor authentication: The fingerprint is what you are, which was can be used to unlock the phone, but divulging the "which finger and how it should be placed" is what you know.

I can't seem to find it but people were "hacking" the biometrics of Androids with 3D printed heads. The trade-off of convenience for security isn't really worth it.

Again, IANAL, and IMHO, and - if you care about privacy - you shouldn't use biometrics whatsoever but I understand the trade-offs between convenience and security and why so many people fall into that trap.

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#239

Post by rocqua »

spaceheeder wrote: post #8
porpoisely wrote: post #4

But can they seize your phone and crack it and look through your stuff without your permission or getting a warrant/judicial oversight? Otherwise, the only thing this does is add one extra step ( and additional cost which doesn't matter since taxpayers are footing the bill ) for the Feds to break into your phone.

They do need a warrant now, although they did not used to, and obviously don't need one if you hand an unlocked phone over upon request (same as if you go along with 'let me see your backpack'). It's unlikely this ruling will be upheld since providing biometrics to unlock a phone is difficult to construe as 'testimony' since it's performing an action, like complying with a court order to unlock your front door in res…

The biggest gray area currently is whether typing in a password is 'something you do' or 'something you know'

It seems pretty clear to me that a password is 'something you know', whilst a fingerprint is 'something you are'. Moreover, typing in a password is very clearly a communicative act, whilst placing a finger on a scanner is a lot more murky. It might communicate intent, but it can't communicate ideas.

Maybe things change if you need to know which fingers work.

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#240

Post by rocqua »

If you fall asleep, can the police just hold your finger to your phone?

It seems very clear to me that this is not a testimonial act. Nor is their 'coercion' here in the communicative sense. I'm guessing there are other laws that prevent police from handling your body to retrieve evidence, or at the very least, laws that require a warrant for such actions.

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