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Court Rules Police Can Force Suspect to Unlock Phone with Touch ID

07-Nov-2014

This summer, the United States Supreme Court ruled that police may not search a cell phone without a warrant. While law enforcement officials argued that flipping through a cell phone after an arrest was similar to asking an arrestee to turn out his or her pockets, the Supreme Court ruled that because of the wealth of information stored on a smartphone, searching a cell phone was  not the same as looking through an arrestee's wallet.

Now, however, a court ruling in Virginia seems to exploit a loophole in order to allow access to smartphones. The ruling of Virginia Beach Circuit Judge Steven Frucci could set a dangerous precedent. 

In the case, attorneys for a man charged with attempting to strangle his girlfriend tried to block investigators' access to the defendant's phone, which they believed to contain video of the incident. While the courts have held that a person does not have to give his or her passcode or PIN number to unlock a phone, Judge Frucci determined that using a fingerprint to unlock a phone does not require a person to give up "information," but rather physical evidence.

In other words, if a suspect provides a password to unlock a phone, the password is considered knowledge or information, and under the Fifth Amendment, a person does not have to provide information that may be self-incriminating. As knowledge or information, the passcode or PIN is protected. 

However, police do have the right to collect physical evidence--such as DNA or fingerprints. According to Judge Frucci, requiring a suspect to use his or her fingerprint to unlock a phone through Apple Touch ID or similar privacy features is no different than collecting fingerprints at the station after an arrest.

Privacy experts say that they were concerned about the fingerprint ID system--which is found on Apple products including the iPhone 5S, 6, and 6 Plus; the iPad Air 2; and iPad Mini 3--from the beginning, and that they predicted that law enforcement would be able use the feature to circumvent the Fifth Amendment.

In order to protect oneself, privacy advocates recommend using a passcode or PIN along with Apple Touch ID. For example, turning off the phone before being questioned by police would require a PIN when the phone is powered on, even for users with Touch ID. While the police could require the fingerprint--the physical object--they could not require the suspect to reveal the PIN--the information.

Information is protected; fingerprints are not. Make sure you understand the legal implications of your "privacy" features and take measures to support your Fifth Amendment Rights.



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