FYI: Yeah, the cops can force your finger onto a suspect's iPhone to see if it unlocks, says judge

Unsealed warrant in Massachusetts adds to growing privacy debate

Forgone conclusions

As such, both law enforcement and the legal system in the form of the judge are clearly defining mobile phones and fingerprint ID as separable issues where the law can apply differently.

Incidentally, if you are wondering why the focus on Apple devices: agent Jacobsen makes it plain that from emails he seized from another suspect, he learned that Brito-Pina had an iPhone – yes, the "Sent from iPhone" default message that appears at the end of emails sent from an Apple mobile device.

The big question then is: are mobile phones and fingerprints different in a legal sense to computers and passwords? And that is where the US legal system is having a big argument right now.

Even in Massachusetts, the answer is far from clear. Last month, the state's higher court unanimously decided that there wasn't a difference and the cops could force a suspected pimp to unlock his phone by typing in the passcode, overriding a lower court decision that had gone the other way.

The Supreme Judicial Court rejected the argument that doing so would violate the Fifth Amendment against self-incrimination and said that the government only had to prove that someone knew their passcode. The legal argument was that the contents on the phone already exist and so someone isn't incriminating themselves because they aren't providing any new information.

If someone knows the passcode that serves as an exception to the Fifth Amendment, the court argued, because it is a "foregone conclusion." And that language is important because it originated in a Supreme Court case about the compelled production of documents in response to a government subpoena. Essentially the Supreme Court argued that defendants can be compelled to disclose information that the government already knows.

But even though one of the justices – Barbara Lenk – agreed with the decision [PDF], she also warned "the court’s decision today sounds the death knell for a constitutional protection against compelled self incrimination in the digital age."

She added: "After today’s decision, before the government may order an individual to provide it with unencrypted access to a trove of potential incriminating and highly personal data on an electronic device, all that the government must demonstrate is that the accused knows the device's passcode."

Court split

Several federal courts, including the 3rd and 11th Circuit Courts, have already extended the "foregone conclusion" exception to encrypted electronic devices i.e. mobile phones.

But some other courts see a clear distinction between passcodes and fingerprints. In Virginia, the current legal default is that someone cannot be forced to hand over their passcode precisely because to do so would break the Fifth Amendment. But the authorities can use fingerprints to unlock a phone because a fingerprint is a "non-testimonial physical characteristic."

And then there is Illinois, which has its own biometric data law (which tech companies are trying to undermine by pushing through a federal law on data privacy). That law requires companies to get informed opt-in consent for any biometric data and any violation of that would be actionable. How that extends to law enforcement and criminal cases is not entirely clear right now but it is a clear pointer in the opposite direction.

Meanwhile, in January, a judge in California refused the police a warrant similar to the one that occurred this month in Massachusetts.

Federal judge Kandis Westmore found the cops did have probable cause to apply for search warrant in an extortion case but denied their request to using people's faces and fingerprints to unlock a number of devices because it was not restricted to the two individuals under investigation.

The judge said the cops could reapply for a more narrow warrant but she also noted that device owners should not have to testify against themselves and so appeared to offer a different interpretation of the Fifth Amendment to other courts elsewhere in the country. And then there's Florida, which looks as though it may be leaning in the same direction in a case surrounding a fatal car crash.

All of which means, of course, that the issue is going to have to be resolved at some point at the Supreme Court.

The most recent big case on privacy and the digital era – Carpenter v. US – saw the Supreme Court Justices decide 5-4 in favor of greater personal privacy when it concluded that the Fourth Amendment on unreasonable search extended to mobile phone location data.

But that case hinged on the fact that the cops did not get a warrant before searching for location data on a suspected armed robber. In this month's gun trafficking case, the cops did get a warrant. The question is: should it have been signed? ®