February 13, 2019

“Face ID is Unavailable. Try Again Later”— Can Law Enforcement Force a Suspect to Unlock Their Phone by Face ID or Fingerprint?

Heidi Kuffel, Katelyn Rauh

According to a recent decision from the Northern District of California—no. In a recent ruling, Magistrate Judge Westmore concluded that compelling an individual to unlock their biometric devices—cell phones that can be unlocked via fingerprint, facial recognition, or iris scan—runs afoul of Fourth and Fifth Amendment rights.

The case, In the Matter of the Search of a Residence in Oakland, California, No. 4-19-70053, 2019 WL 176937 (N.D. Cal. Jan. 10, 2019), involves a search warrant application submitted in connection with a government investigation into an alleged Facebook extortion crime. In the application, the government sought to seize numerous digital devices from an unspecified property and to compel the suspects to unlock their digital devices via fingerprint, facial recognition, or iris scan. The central issue addressed by the court was whether the use of a suspect’s biometric feature to unlock a digital device is testimonial under the Fifth Amendment. The court answered in the affirmative, reasoning that the act of unlocking a digital device concedes possession and control and authenticates ownership. Moreover, the court held that act of unlocking a device is potentially self-incriminating because it gives law enforcement access to the device’s contents.

Taking direction from the landmark Supreme Court decision, Carpenter v. United States, the court began its Fifth Amendment analysis by discussing its obligation to protect an individual’s constitutional rights and that it “cannot permit those rights to be diminished merely due to the advancement of technology.” The court acknowledged that the concept of securing digital devices is not new and proceeded to discuss prior precedent where courts have held that compelling an individual to provide a passcode violates the Fifth Amendment right against self-incrimination. Further, the court reasoned that biometric features are the functional equivalent of a passcode because they both serve the purpose of protecting the owner’s content stored on the device. Thus, the court concluded that if a person cannot be compelled to provide a passcode, then they cannot be compelled to provide a thumb, face, or other biometric feature to unlock their device.

Other courts have disagreed with Oakland and found that the Fifth Amendment does not prohibit the compelled use of a person’s biometric features to unlock a digital device. For example, in Matter of Search of [Redacted] Washington, District of Columbia, 317 F. Supp. 3d 523 (2018), the court held that the compelled use of a suspect’s biometric features was non-testimonial, reasoning that it is “far more akin to the surrender of a safe's key than its combination.” In Matter of Search Warrant Application for [redacted text], 279 F. Supp. 3d 800 (N.D. Ill. 2017), the court found that the act of placing a suspect’s fingers on a Touch ID sensor is non-testimonial because it does not engage the thought processes of the suspect, and the fingerprint, by itself, does not communicate anything. Likewise, in State v. Diamond, 905 N.W.2d 870, 878 (Minn. 2018), the court found that providing a fingerprint to the police was non-testimonial because the act did not reveal the contents of the defendant’s mind. But see In re Application for a Search Warrant, 236 F.Supp.3d 1066 (N.D. Ill. 2017) (finding that the compelled use of a person’s fingerprint is testimonial because “by using a finger to unlock a phone’s contents, a suspect is producing the contents on the phone.”).

Although most of the discussion in Oakland focuses on the Fifth Amendment, the Court also denied the government’s request to compel on Fourth Amendment grounds. Though the Court found that the government had established sufficient probable cause to conduct a lawful search of the premises, it denied the request to seize all digital device found on the premises and to compel any individual present during the search to provide a biometric feature to unlock the seized devices. The court found that the request to compel was overbroad since it was neither limited to a specific individual nor to a specific device. Moreover, the request to seize all digital devices was equally overbroad, and the Court instructed the government to resubmit an application limited only to “those devices reasonably believed by law enforcement to be owned or controlled by the two suspects identified in the affidavit.”

This begs the question – how specific must warrants be to pass judicial muster? Are the police required to know and set forth the particular kind, make, and model of the digital device? Some recent cases have touched on these issues. In U.S. v. Manafort, 314 F. Supp. 3d 258 (D.D.C. 2018), the court described the specificity requirement by referring to breadth—which limits the scope of the warrant “by the probable cause on which the warrant is based”—and particularity—which requires clear statements of the items sought. The court explained that a degree of flexibility must be applied to the particularity requirement and that the totality of the circumstances should be assessed when reviewing the validity of a search warrant where the agent or officer has “reason to believe that the devices will be found at the location, but cannot precisely identify them.” In U.S. v. Griffith, 867 F.3d 1265 (D.C. Cir. 2017), the government submitted an application to seize all electronics discovered on a subject premises in connection with a year-old murder investigation. The court found that the government failed to establish that the suspect owned a cellphone and, even if he did, that he would still be in possession of the same phone nearly a year later. Absent a connection between the murder investigation and the items sought to be seized, the court found there was insufficient probable cause to seize all electronics discovered at the premises.

While Oakland may not provide a definitive answer to whether unlocking a smartphone is self-incriminating or to just how specific a search warrant for electronic devices needs to be, it certainly sets the stage for future judicial analysis. Eventually, the Supreme Court will likely weigh in to help strike a balance between individual privacy rights and law enforcement’s ability to adhere to its duties and protect the public.

Heidi Kuffel is an associate in the Chicago office of Skarzynski Black LLP.  Katelyn Rauh is a law clerk at the New York office of Skarzynski Black LLP and a student at Elisabeth Haub School of Law at Pace University.

Katelyn Rauh