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Analysis of the Feb 16, 2017 Order by the Illinois District Court
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> | I. Introduction |
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> | Acquiring fingerprint data has become crucial for the law enforcement when an Apple device is involved in a crime which is locked by Touch ID. |
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< | I. Introduction
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> | The investigators have sought search warrants that allow them to enforce persons at the subject premise to depress their fingerprints. It has been conducted since around 2014, and has become routine especially in California. Although in February 2017, a federal district court blocked the issuance of a search warrant allowing the law enforcement agency to compel individuals to provide fingerprints on the grounds of insufficient specificity and probable cause.[In re Application for a Search Warrant, No. 17M081, 2017 U.S. Dist. LEXIS 23861 (N.D. Ill. Feb. 16, 2017)] |
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< | Touch ID is a fingerprint authentications installed in the products of Apple Inc. (“Apple”), among which are iPhone 5S and the more recent versions of iPhones. In this system, the user’s fingerprint is used to unlock the devices. Apple states that this fingerprint data is stored locally, not in cloud , which makes forensic investigators very difficult to access externally. Further, the entry of a passcode is required “when more than 48 hours have elapsed from the last time you unlocked your device,” which makes it more complicated for criminal investigation since passcode breaking is much more challenging. |
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> | Fingerprint data is one of the "nontestimonial identification" which identifies an individual other than testimony. It includes fingerprints, palm prints, footprints, measurements, blood specimens, urine specimens, saliva samples, hair samples, handwriting exemplars, voice samples, photographs, and lineups. |
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< | Thus, acquiring fingerprint data has become crucial for the law enforcement when an Apple device is involved in a crime which is locked by Touch ID. |
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> | Of these, fingerprints and DNA samples are the most important since either of them can be a dispositive factor for the individual identification and they contain many privacy information which can lead to privacy violation through their collection and storage in the government database. |
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< | Fingerprint data can be obtained through other government databases such as those of immigration registration. Investigators can also use fingerprints from a dead person because it is said that this does not give rise to the privacy issues or the self-incrimination issues. |
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> | Here, I would like to discuss whether a warrant is necessary for genetic material collection; whether it is prerequisite to attempt to obtain “testimonial identification”; does the Constitution allow special methods of search for evidence. |
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< | When these sources are not available, the investigators have sought search warrants that allow them to enforce persons at the subject premise to depress their fingerprints. It has been conducted since around 2014 , and has become routine especially in California. |
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> | II. Genetic Material Collection |
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< | However, on Feb. 16, 2017, the US District Court for the Northern District of Illinois Eastern Division blocked the issuance of a search warrant allowing the law enforcement agency to compel individuals to provide fingerprints. |
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> | In June 2016, the Supreme Court held that the law enforcement needs a warrant to test the blood for drunk driving, unlike a breath test.[Birchfield v. North Dakota, 136 S. Ct. 2160 (2016)] The court stated that direct blood testing “require piercing the skin” and is “significantly more intrusive than blowing into a tube” on privacy. The decision also pointed out that “A blood test also gives law enforcement a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. That prospect could cause anxiety for the person tested. “[p2164] This means that natural metabolism of alcohol alone cannot constitute the “exigent circumstances” for a warrantless search. |
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II. Analysis of the Case
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> | Maryland v. King, 133 S. Ct. 1958, 1980 (2013) decided that a statute forcing those in custody for serious offenses to a buccal swab to collect their DNA is reasonable without a warrant under the Fourth Amendment due to its “identification only” purpose. |
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< | In the case, the government asked the court to issue a warrant “to compel any person who happens to be at the subject premises at the time of the search to give his fingerprint to unlock an unspecified Apple electronic device”. |
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> | Further, the courts have found that collecting DNA samples from garbage without a warrant (“surreptitious sampling”) is not a violation of the Fourth Amendment for the reason that there is no expectation of privacy in discarded genetic material. |
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< | The court discussed two issues: those on the Fourth and Fifth Amendments. In summary, it stated that there needs to be more specific facts to establish sufficient probable cause under the Fourth Amendment as to “who is involved in the criminal conduct linked to the subject premises” or as to “what particular Apple-branded encrypted device is being employed” Moreover, the court concluded that considering the nature of Apple electronic devices which “potentially contains some of the most intimate details of an individual’s life” and the situation in this case where the law enforcement had no showing that “the location, existence, and authenticity of the purported evidence is known with reasonable particularity,” seeking the forced printing to hand over the information in devices is regarded as compelled self-incrimination forbidden under the Fifth Amendment. |
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> | The general criteria for all those above is “the reasonable expectation for privacy.” [Katz case] It is controversial whether it is appropriate to consider the expectation for privacy would be lost or decreased for those that are not even convicted but arrested. There is also an opposing opinion about breath testing which the Supreme Court allows without warrant for the reason that it is not too intrusive and is necessary for the investigation. However, the Constitution protects not only the right to privacy under the Fourth Amendment but the government’s authority to criminal investigation by providing criminal procedures [Part III, etc.], it can be construed that the breath test is allowed as an exigent circumstances exception [see Mincey v. Arizona]. |
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< | Nonetheless, the court mentioned that the Fourth Amendment does not protect privacy interests of a fingerprint itself. What it was concerned was how the print is collected. |
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> | III. Collection From Those Other than the Suspect |
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< | Additionally, regarding the Fifth Amendment, although the court said that if “the location, existence, and authenticity of the purported evidence is known with reasonable particularity” and “the contents of the individual’s mind are not used against him” (so-called “foregone conclusion”)—with this logic, it seems that compelling the depression of fingerprints will always be regarded as forced self-incrimination since the contents of a device is unknown to the agency until it is unlocked--, the court concluded that the warrant can be issued if sufficient evidence and information are submitted. |
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> | In May 2016, the District Columbia Court of Appeals decided that the Fourth Amendment permits a warrant requiring a witness or a victim to offer DNA samples. The reason is because the probable cause for a search warrant is to “believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense.” This was regarding a warrant specifically requiring an individual to offer a certain sample. |
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< | In overall, even though it refused to order a warrant under the circumstances herein, it has not closed the door to all search warrants that compel an individual to forced fingerprinting. |
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> | On the other hand, it should not be allowed to force individuals other than the suspect to offer his DNA samples just because he was at the search site since it is beyond one’s reasonable expectation of privacy. The law enforcement should obtain a separate warrant.
IV. Testimonial Identification |
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III. Thoughts and Conclusion
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> | The Fifth Amendment does not apply to non-testimonial evidence such as blood, hair, fingerprinting, measurements, handwriting. It solely prohibits the extortion of information by forcing a person “to disclose the contents of his own mind.” [Curci v. United States, 354 U.S. 118] |
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< | Hence, under this decision, the government can obtain fingerprint data by a search warrant with a sufficient evidential cause against persons found at the subject premises at the time of searching. |
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> | Accordingly, forcing a suspect to disclose the passcode to a smart phone by a warrant is against the provision. |
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< | However, what if anyone but an Apple device was found on the search site? Can an investigator ask the court to issue a warrant that compels the owner to depress his fingerprints after its seizure? From the logic of the decision above, one should think that a government cannot go as far as to compel a person to give his fingerprint after the seizure. The court implies that the detention in order to get the fingerprint at the search site is allowed because it represents “only an incremental intrusion on personal liberty when the search…has been authorized by a valid warrant.” And summoning a person to get his fingerprint is surely not an incremental intrusion. Then, the law enforcement might have to use the All Writs Act (“AWA”) just as the FBI did against Apple to unlock passcode-locked iPhone in San Bernardino case in 2016. Yet, the court opinion here is not clear on this issue. It states, “after the execution of this warrant, the government may garner additional evidence…[and] can promptly apply for additional search warrants” and seems to assume that it can issue a search warrant after the seizure of a device. |
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> | This was the reason the FBI sought a search warrant to force Apple Inc. to provide technical assistance to unlock the phone in In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by this Court, 149 F. Supp. 3d 341 (E.D.N.Y. 2016). Note that the exhaustion of acquiring testimonial evidence is not necessarily a condition to issue a search warrant since the requirements for a search warrant is specificity (Rule 41) and “probable cause.” Having said that, the exhaustion is a factor to consider upon determining the “necessity” of imposing a burden of offering technical assistance on a third party [Brooklyn case, supra]. |
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< | If a warrant should be issued under the AWA, the threshold will be higher than the issuance of a search warrant. It requires “the absence of alternative remedies” and the consideration of such factors as “the closeness of the subject’s relationship to the criminal conduct and investigation,” “the burden the requested order would impose on the subject,” and “the necessity of imposing such a burden on the subject.” |
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> | V. Special Treatments for Certain Samples |
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< | In any case, requiring an additional warrant for fingerprinting might make the investigator impossible to unlock the Apple device since Touch ID only works for 48 hours. |
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> | The question whether special treatments to acquire certain samples with a warrant should also be considered under the “reasonable expectation of privacy” test. |
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< | As the court in Brooklyn case mentioned, the AWA is a general provision with a role of “gap filler” when “lack of laws” exists. It might be more appropriate to enact a law on forced fingerprinting in order to avoid ad hoc court decisions and to reflect public opinions on privacy interests in fingerprint itself which the Fourth Amendment does not protect and on the effectiveness of the investigations.
END
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> | The Supreme Court allowed the law enforcement to extract bullet from involuntary suspects with surgical intrusions [Winston v. Lee, 105 S. Ct. 1611 (1985)]. |
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> | Whereas forced catheterization for urine testing with a warrant has not yet been settled at the Supreme Court. Urine testing is usually conducted for drug or alcohol use and if blood test will suffice, such search warrants should not be permitted since blood test is physically and mentally less intrusive. |
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< | Why is one district
court's decision on the issuance of one search warrant worthy of
1,000 words of analysis? At most, one trial court's decision on one
warrant would be a matter for a single citation, and my guess is
that one could have found hundreds of such decisions. Nor is the
All Writs Act relevant to the constitutional questions you are
considering, because the statute can have authorized no conduct that
the Constitution would not permit. On the other hand, your
constitutional analysis proceeds without the invocation of any
precedent whatever, as though the constitutional law of this
situation depended on your logic alone. What are the relevant
Fourth and Fifth Amendment cases, and how do they apply here?
So the route to improvement is clear enough. Let's get away from
one trial court decision to a general statement of the problem,
which you have already present in a succinct enough form. Then we
can be asking the questions in light of the Supreme Court's actual
decisions. Could a warrant call for the blood testing, or the
genetic material collection, of everyone at a crime scene? If not,
why not? When is it a Fifth Amendment violation to require by way
of search warrant that the owner of a phone be identified by
collection of a fingerprint that will open it? What do cases about
other forms of "testimonial identification," as in the control of
business records or the provision of safe combinations, tell us?
Does the Constitution allow methods of search for evidence that
decays quickly on its own that would not be allowed for more durable
materials? |
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> | Contrarily, the copying of the data of a computer at the search site and making its duplication is allowed since making duplication is reasonable considering the possibility of the data loss from the original copy. |
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> | VI. Conclusion |
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> | All things having said, the criteria for the “reasonable expectation of privacy” changes as the people’s thoughts about privacy change. The more people know what is being and can be done with their data, especially personal data, with big data technology, the court might get to apply stricter test than today’s.
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