A judge in California ruled this week against allowing law enforcement to force people to unlock their phones with their faces or fingerprints, setting up a future battle in the Supreme Court over digital privacy protections.
"While this ruling can set a good precedent, the case law is still not settled," Garaffa said Tuesday. "Other District and Circuit courts have ruled that law enforcement can compel a person to use biometric identification to unlock their phone. Ultimately, this will likely need to go to the US Supreme Court for a final legal analysis," he noted.
The traditional legal analysis has suggested that your password is a piece of knowledge you have, thus enabling you to deny the FBI access to your device by invoking the Fifth Amendment right to remain silent, Garaffa noted. Biometric keys like your thumbprint or face have not always been covered under that Fifth Amendment protection.
Northern California Federal District Judge Kandis Westmore brought down the order denying a police warrant last week, The Register reported. Police sought to gain access to devices found at a site in Oakland, California, that are tied to a pair of suspects. The investigation is still underway, but the suspects are thought to be involved in an extortion scheme.
"The Court finds that the Government's request runs afoul of the Fourth and Fifth Amendments," Judge Westmore wrote in the order.
Garaffa explained that "the issue of whether biometrics, including images of their face or their fingerprints, could be covered under the Fifth Amendment has been an important topic of discussion in both the legal and privacy fields since Apple introduced its TouchID feature a few years ago, bringing biometric authentication for smartphones to the mass market."
In the order, Westmore gets right at the heart of the Fifth Amendment question by stating that in previous cases, people did not have to give away their passcodes because they were consider to be something that belongs to an individual's mind, and "[t]he expression of the contents of an individual's mind falls squarely within the protection of the Fifth Amendment."
Westmore argued "that if a person cannot be compelled to provide a testimony because it is a testimonial communication, a person cannot be compelled to provide one's finger, thumb, iris, face or other biometric feature to unlock that same device."
Westmore says that just because technology is advancing to give citizens shortcuts for opening their iPhone home screens a couple seconds more quickly, that does not mean they should be forced to relinquish civil rights. "Courts have an obligation to safeguard constitutional rights and cannot permit those rights to be diminished merely due to the advancement of technology," the magistrate said in the order.
There are also Fourth Amendment grounds on which the government's request to search devices failed.