A search warrant issued by a federal judge in Glendale, California authorized the police to press a suspect's finger onto the Touch ID sensor on an iPhone in order to unlock the phone for forensic analysis.
This has drawn mixed opinions among constitutional law scholars as to whether such a warrant constitutes a violation of the person’s Fifth Amendment right against compulsory self-incrimination.
The Fifth Amendment privilege applies to “testimonial communications or acts.” Thus, the key question here is whether the act of forcing a person’s finger onto the iPhone’s sensor constitutes a testimonial act.
Critics of the warrant liken this to previous cases that have addressed whether a person can be ordered to decrypt his computer. In United States v. John Doe, the Eleventh Circuit addressed this very issue and held that the decryption of the hard drives “would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.”
Those in favor of the warrant argue that the act of unlocking the phone with the touch sensor is a mere physical act and is not testimonial as it does not require the use of the person’s mind (unlike decrypting a computer). They compare this to the obtaining of DNA, fingerprints or handwriting samples from suspects—all of which do not implicate the Fifth Amendment.
On the flip side, detractors point out that by forcing a person to unlock the iPhone using the touch sensor, the police now know that this person had access to whatever incriminating evidence is found on there.
Apple’s Touch ID is an optional feature on phones and tablets and it cannot be used if the phone has not been unlocked for 48 hours. If a phone is restarted, or goes beyond the 48-hour window, only a passcode can open it. Thus, law enforcement have a very small window of opportunity if they are going this route to get into a phone.
It remains to be seen whether courts around the country will continue to issue these warrants to law enforcement. It’s likely just a matter of time before this issue finds its way to the U.S. Supreme Court.
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