A federal judge in California has issued a ruling [PDF] on the Fifth Amendment that upholds both the Constitutional right and a request that appears to violate it. It doesn't all fit together perfectly, but the "foregone conclusion" doctrine factors into it. But constraints are put on this conclusion and, ultimately, that's how the government is permitted to carry out this search.
It originates, as so many of these do, from a drug investigation. The government believes it can find evidence it needs for its prosecution by searching the phone found on the suspect. Bad news: the phone's contents are locked behind a biometric wall and it needs judicial permission to force the suspect to open the phone for it.
The government argued that biometric features like fingerprints, retinas, blood, facial features, etc. are non-testimonial because they are physical evidence, not testimony. Obviously, a face that unlocks a phone is also a face anyone can see. It imparts no knowledge the suspect may want to keep secret. But combined with a locked device requiring biometric input, it actually imparts knowledge law enforcement may not have when they seek compelled production: it identifies the person as the owner of the device.
This can be testimonial, depending on the government's foregone conclusions, or lack thereof. The court says as much here:
Here, compelling an individual who is a target of the investigation to use his or her finger or face to unlock a device represents incriminating testimony within the meaning of the Fifth Amendment because it amounts to an assertion of fact that that the individual has the ability to unlock the device, which in turn makes it more likely that the individual locked the device and put the material sought by the warrant on the device.
More to the point, the government's arguments about biometric features not being testimonial is a dodge. Unlike being fingerprinted after an arrest, applying a fingerprint to a phone gives the government what it really wants -- not what it says it wants when it engages in this sort of intellectual dishonesty. The court calls this out:
Unlike a fingerprint or blood sample, which is obtained for the purpose of identifying a particular individual, the only purpose of compulsory application of a biometric feature to a device is to obtain access to the device's contents; the government has no interest in obtaining the physical characteristic (e.g., the fingerprint) per se.
So, if compelled production of fingerprints, retinas, or whatever's needed to unlock a seized phone violates the Fifth Amendment, how does the government work around it? Well, normally the court would examine its conclusions -- what evidence the government already has that links the locked device to the suspect in custody.
In this case, the court doesn't go that far. It gets out ahead of this matter and forces the government to reach these conclusions before it can start applying biometric features.
During the execution of the search of the SUBJECT PREMISES described in Attachment A, law enforcement personnel are authorized to compel [named individuals] to apply their respective biometric feature(s) to a smartphone or other electronic device capable of being unlocked by such feature in order to search the contents of the device as authorized by this warrant, but only if the following conditions are met:
(1) the device is found on the person of one of the individuals named above or at the SUBJECT PREMISES; and
(2) as to a particular device, law enforcement personnel have information that the particular individual who is compelled to apply his or her biometric feature(s) has the ability to unlock that device, such that his or her ability to unlock the device is a foregone conclusion.
This means the government can't find a bunch of devices and start playing fingerprint roulette with this court order. It will have to find devices on certain people and then it still needs to be able to connect the device to the person holding it before it can compel production.
This is the balance the court strikes: the government can bypass the Fifth Amendment if it lines everything up first. It's the same sort of compromise courts create for the Fourth Amendment. Unreasonable searches are forbidden. A warrant, granted by the court, allows the government to engage in unreasonable searches. In this case, the court is creating a narrow exception to the Fifth Amendment that forces the government to show its work before it can start compelling production. It's not perfect, but it will have to do until more case law is established and higher-level courts are willing to start handing down precedent.
Filed Under: 5th amendment, biometrics, compelled production, passwords, police