Earlier this year, the FBI and Apple found themselves embroiled in a contentious legal dispute regarding the locked iPhone of Syed Farook, one of the San Bernardino terrorists. Unable to access the device, the FBI wanted Apple to create a tailor-made version of iOS that would circumvent built-in iOS security measures. Apple, meanwhile, vehemently refused, with Tim Cook even stating that the FBI wanted Apple to create the “software equivalent of cancer.”
Eventually, the FBI managed to access Farook’s locked iPhone after purchasing a hack from an anonymous third-party. And so while Apple’s specific dispute with the FBI seemingly resolved itself, the broader issues the case raised still persist and will undoubtedly assume the public spotlight again.
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Put simply, the crux of the issue is this: When the government or law enforcement agency obtains a legitimate warrant to search a mobile device, what recourse do they have if the device is locked?
While the iPhone used by Farook was an iPhone 5c protected by a passcode, we’re fast approaching a future where almost every smartphone device will be locked by a fingerprint or some other biometric indicator. That being the case, can an individual be compelled to hand over his or her fingerprint to authorities?
It’s an interesting question that was recently brought to the forefront after law enforcement officials in Glendale, California obtained a search warrant to search the iPhone of a gang member’s girlfriend. The iPhone in question was locked via Touch Id, but a judge compelled the girlfriend “to press her finger against an iPhone that had been seized…”
Is this what investigations of the future will look like? Will it become commonplace for individuals to offer up their fingerprints in order to unlock devices subject to legitimate warrants?
The question raises a number of interesting issues such as the right of individuals not to incriminate themselves.
To this point, the Los Angeles Times observes:
Even with the limited outlines of the inquiry, Brenner said the act of compelling a person in custody to press her finger against a phone breached the 5th Amendment’s protection against self-incrimination. It forced Bkchadzhyan to testify —without uttering a word — because by moving her finger and unlocking the phone, she authenticated its contents.
“By showing you opened the phone, you showed that you have control over it,” Brenner said. “It’s the same as if she went home and pulled out paper documents — she’s produced it.”
But Albert Gidari, the director of privacy at Stanford Law School’s Center for Internet and Society, said the action might not violate the 5th Amendment prohibition of self-incrimination.
“Unlike disclosing passcodes, you are not compelled to speak or say what’s ‘in your mind’ to law enforcement,” Gidari said. “‘Put your finger here’ is not testimonial or self-incriminating.”
To date, there haven’t been many cases involving whether or not a defendant can be forced to unlock his or her iPhone. Suffice it to say, it’s an issue that will become more and more frequent with each passing year.
