LA judge orders a suspect to unlock an iPhone with her fingerprint

By midian182 · 21 replies
May 2, 2016
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  1. Even though the FBI versus Apple court case never got off the ground, the encryption war continues. The latest battle involves a case in LA, where a federal judge has signed a warrant ordering a person to unlock her smartphone using her fingerprints, according to a report in the Los Angeles Times.

    The FBI obtained a warrant that required identity theft suspect Paytsar Bkhchadzhyan to unlock her iPhone using TouchID about 45 minutes after being taken into custody. US Magistrate Judge Alicia Rosenberg signed off on the document.

    In 2014, the US Supreme Court ruled that law enforcement can search the phones of criminal suspects if they have a warrant. It also stated that police can order a person in custody to provide fingerprints without a judge’s permission.

    It’s still unclear why authorities wanted Bkhchadzhyan, who has a string of previous convictions and is the girlfriend of an alleged Armenian gang member, to unlock her phone. The action has ignited arguments over whether or not it violates a person’s 5th Amendment rights, which protects against self-incrimination.

    "It isn't about fingerprints and the biometric readers," said Susan Brenner, a law professor at the University of Dayton, told the times."The contents of that phone, much of which will be about her, and a lot of that could be incriminating."

    Albert Gidari, the director of privacy at Stanford Law School's Center for Internet and Society, has a different opinion: “Unlike disclosing passcodes, you are not compelled to speak or say what's 'in your mind' to law enforcement," he said. "'Put your finger here' is not testimonial or self-incriminating."

    A 2014 Virginia case set a precedent when a judge ruled that the suspect could be compelled to provide fingerprints to open a locked phone but not a password. With this latest case of a person being forced to unlock a device with their prints, could more courts start issuing similar warrants?

    Permalink to story.

  2. ikesmasher

    ikesmasher TS Evangelist Posts: 3,052   +1,366

    As someone siding with Apple on the whole thing, I see nothing wrong with ordering someone in custody to unlock their phone...
    cliffordcooley likes this.
  3. Uncle Al

    Uncle Al TS Evangelist Posts: 4,005   +2,492

    As stated, the 5th Amendment prevents a person from being required to incriminate themselves, regardless of cause or reason. Either this Federal judge has chosen to ignore the fact, knowing well that the case will be reversed on appeal or knowing that, feels the information is so valuable that the content of the phone is more important than the final verdict. Of course, the existing Supreme Court has violated so many of it's long standing rulings and principles the matter could be allowed to stand, even if challenged. Just another unfortunate indication that the government is strongly moving towards Socialism and away from anything that looks like Democracy. God help us all!
    Reehahs and TheBigT42 like this.
  4. veLa

    veLa TS Evangelist Posts: 808   +247

    Perhaps the whole 5th amendment thing would be a good reason not to?
    Darth Shiv and Reehahs like this.
  5. ikesmasher

    ikesmasher TS Evangelist Posts: 3,052   +1,366

    Whoops, forgot about that one for a moment. ignore me, was up all night, I'll just go back to my corner now.
  6. mbrowne5061

    mbrowne5061 TS Evangelist Posts: 902   +458

    "Fruit of the Poisonous Tree" is a legal philosophy in the US. If the outcome of the final verdict is it is a violation of the 5th Amendment, then all evidence obtained by forcing her to unlock her phone with her fingerprints will become inadmissible. This would pretty much guarantee that her gang-member boyfriend will get to walk, even with the authorities knowing exactly what he did.

    If they want to bust him, they better hope that this verdict isn't overturned (I kind of hope it is, since biometrics will be replacing passwords very soon - and this prevents biometrics from being protected by the 5th amendment), or find another source of incriminating evidence against her boyfriend.
  7. captaincranky

    captaincranky TechSpot Addict Posts: 13,656   +3,115

    Well, people seem to have conveniently forgotten that you may be compelled to allow police to enter and search your home. The Constitution only gives you protection against, "unreasonable search and seizure".

    So, your home might be chock full of "incriminating documents", (would of course you would be trying to shred as the polizia were coming up the driveway). So, "self incrimination" at it's most basic, simply means you can't be compelled to stand up at your own trial and announce, "I did it m***** f*****, so what?

    Now, simply because "documents", (which the police are entitled to confiscate), have conveniently been renamed "data", doesn't mean the police aren't entitled to confiscate it as well. Accordingly, you're the ones trying to "rewrite the Constitution", not the government.

    Electronic means have become legal to close a contract, sign for credit, plus a host of other things, which formerly required "a paper trail". Thus, if "data" has become "a legal document", then it falls under current search and seizure legislation.

    So, "data" is the "paper document of the millennium", get over it, and yourself.

    And BTW, I think your confusing "Socialism", with "Communism", both which the Russians confused with what constitutes, "a military dictatorship".

    And for what it's worth, I read the "Communist Manifesto" and Karl Marx" was an imbecile, who merely repeated the same dogmatic bulls***, every 7 pages or so.

    Same with Nietzsche, who was a pathetic, sickly man, writing "Superman comics", and indirectly causing the most devastating war mankind has ever known.

    See above ^^^^
    Last edited: May 2, 2016
    LNCPapa, Reehahs and cliffordcooley like this.
  8. dms96960

    dms96960 TS Guru Posts: 305   +66

    Captain cranky has set the wannabe lawyers straight
  9. cliffordcooley

    cliffordcooley TS Guardian Fighter Posts: 10,229   +4,155

    I still feel that searching the phone is no different than any other search warrant. The persons 5th amendment right doesn't prevent them from incriminating themselves when they have to stand aside and let law enforcement go through their house. There is no difference in the thumb print vs having to stand aside or opening a safe/vault.

    Edit: Ahh I see Captain has already made my point
  10. Badvok

    Badvok TS Addict Posts: 226   +95

    It's a little more complicated than you think. Unlocking a smartphone by fingerprint (or unlock code) is a direct admission that the smartphone is yours, and hence is directly equivalent to standing up in court and saying "I did it.". In the same way that providing the combination to a safe is a direct admission that you are the owner of that safe and its contents.
    Of course if the prosecutors can show that proof of ownership is already established then the additional proof of providing the unlock mechanism may not itself be self-incriminating and hence may circumvent the 5th.
  11. cliffordcooley

    cliffordcooley TS Guardian Fighter Posts: 10,229   +4,155

    That is done when you pay your phone bill. They know who owns which phone. They don't need your finger print to prove it.
    Darth Shiv likes this.
  12. Badvok

    Badvok TS Addict Posts: 226   +95

    But how do they know who pays the bill? PAYG, burner phones, non-traceable, also phones paid for by other organisations (criminal or otherwise), companies or even by parents. Depending on the contents of the phone a defendant might even be better off claiming they stole the phone rather than unlocking it.
  13. Uncle Al

    Uncle Al TS Evangelist Posts: 4,005   +2,492

    Regardless of how, who pays, you cannot be forced to breech your 5th amendment rights. There ARE exceptions such as licking the seal on an envelope and dropping it into the mailbox. That is willful surrender of your DNA through a 3rd party. If they can trick the individual to handle the phone so it unlocks, that is one thing but ordering the individual to unlock the phone against their 5th Amendment rights is a violation of the amendment, as it is written. Of course, not to worry, the current court is so flaky and has rescinded so many long standing rulings, this will be just one more......
  14. captaincranky

    captaincranky TechSpot Addict Posts: 13,656   +3,115

    You certainly are slick! I'm just going to kick back while hoping and praying your identity gets stolen. Then you can be the thief's lawyer, and get him or her acquitted of the charges. After all, you have principles to uphold, right? I get tired of the endless debate about which form of government the US is heading toward. I say karma should charge, and leave you wondering where your bank account went....:oops:
    I know what I'm going to do, put a finger print lock on my front door. If you're correct, I can't incriminate myself by opening it, no matter whose name is on the deed. I can simply tell the police, "you can't come in to search the place, on the grounds I might incriminate myself by unlocking the door"........................................................................................and the next thing you know, the door and its frame, will by lying in the middle of the living room floor.

    And I still think, you're not incrimination yourself. The phone isn't part o your body. Somehow this generation believes a cell phone is some secret place, unassailable by the rule of law.. It's really just something for you to run your mouth on ad infinitum, while saying nothing worthwhile, going over your data cap, then whining about it afterwards.

    Or, you can be these kids lawyer:
    "LAKEBAY, Wash. – Three teenage boys are facing serious charges after Pierce County Sheriff’s deputies said they recorded themselves sexually assaulting a 15-year-old girl.".

    Or maybe this attack:

    Two Steubenville High School football players have been indicted for rape, and the case is set to go to trial in February. But on Wednesday, a video appeared online that depicts teenage males who appear to be joking about details of the alleged rape.

    The nearly 13-minute video posted on YouTube consists mostly of one teenage male hysterically laughing as he entertains an unseen cameraman and others in the room with remarks such as "They raped her harder than that cop raped Marcellus Wallace in 'Pulp Fiction'," and, "They raped her quicker than Mike Tyson raped that one girl."
    Last edited: May 3, 2016
    cliffordcooley likes this.
  15. Reachable

    Reachable TS Addict Posts: 231   +89

    All they want is the code that decrypts her name.
  16. captaincranky

    captaincranky TechSpot Addict Posts: 13,656   +3,115

    Well, let me see now. It's perfectly legal to take this persons fingerprints. You could either ink up the phone touch pad. Or, take her fingerprints, and print it out in 3d, then open the phone yourself. AFAIK, you don't need a person's DNA to open a damned cell phone, at least not yet :shrug:
  17. Badvok

    Badvok TS Addict Posts: 226   +95

    Oh dear, you really don't like being wrong do you? If they have a warrant to search premises then they are perfectly entitled to gain entry by any means, but they shouldn't be able to force you to unlock the door if it is a combination lock, fingerprint, iris scanner or whatever (they can of course force you to surrender a physical key if you have it). The same applies to a phone or any other device, they should be allowed, by warrant, to gain entry by any means but they should not be able to force you to open it up if that very act would amount to self-incriminating evidence.
    Seems like you really don't like the 5th amendment. Come join us over here in old blighty, no such thing over here.
  18. cliffordcooley

    cliffordcooley TS Guardian Fighter Posts: 10,229   +4,155

    What do you think the finger print of this topic is?
  19. Reachable

    Reachable TS Addict Posts: 231   +89

    This is a tricky issue. It's legal for the police to raid your house in search of evidence, and by the same logic legal to raid your phone. The Fifth Amendment means you can't be compelled to self-incriminate, because that can be facilitated by torture. They can take the key to your house out of your pocket with minimal physical force. They can force your thumb on to your phone with minimal physical force. They'd have to torture you to get you to recite your password. Logic, therefore, implies that if you don't want the authorities to potentially see what's in your phone, a better bet is to use a password instead of a fingerprint.
    Darth Shiv likes this.
  20. captaincranky

    captaincranky TechSpot Addict Posts: 13,656   +3,115

    Yeah, I know, you drop the dope and it's not yours. Spare me.
  21. Badvok

    Badvok TS Addict Posts: 226   +95

    A fingerprint is part of your identity and hence represents proof of ownership and as such its use may amount to self-incriminating evidence. A physical key may not belong to you, even if it is in your possession, and hence provides no concrete evidence itself, only circumstantial.
    But hey, I'm not a lawyer, I'm sure it will all be sorted out eventually in the least logical way possible.
  22. Darth Shiv

    Darth Shiv TS Evangelist Posts: 1,857   +495

    Yeah and also who's to say they can't take your fingerprint then manufacture an artificial thumb with the print on it and use it on the phone? Surely that isn't implausible nowadays? Stick with passwords.

    The bit that I don't get about using biometrics is that they are on public display. Your eyes, your finger prints can be obtained easily via deception and so on. There is zero secrecy with them. That smacks of vulnerability to copying/manipulation to me.

    Next gen privacy protection. Wearing special glasses to prevent unauthorised retina scans and wearing gloves to protect from stray finger prints being lifted.

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