Cops Can't Force Phones Unlocked With Face and Fingerprints

By Lisa M. Schaffer, Esq. on January 17, 2019 3:30 PM

In a landmark ruling, a federal district court judge in Northern California ruled that police cannot force people to use biometrics to unlock their phones without a specific warrant. As technology advances, some are worried about their invasion of privacy, both civilly and criminally. Though this ruling has limited jurisdiction, it is the first of its kind to outlaw the use of biometrics based on Fifth Amendment rights.

Warrants to Search Phones Must Respect 4th Amendment Rights Against Unlawful Search and Seizure

In this case, two suspects in Oakland were being investigated over allegations they were blackmailing someone over an embarrassing video using Facebook Messenger. A warrant was requested to search where the two suspects were expected to be, and unlock the digital devices of anyone discovered on the scene.

In denying the warrant, Judge Kandis Westmore said that the warrant was overly broad, since the request was to review the devices of anyone in the area, and not just the two suspects. Therefore, the requested warrant violated Fourth Amendment laws of reasonable search and seizure. Judge Westmore said that the application could be resubmitted only targeting the two suspects and their devices. But then the judge opted to take it further.

And 5th Amendment Rights Against Self-Incrimination

Judge Westmore's then said that "technology is outpacing the law," and, in the court's view, biometric data could be considered "testimonial communication" protected by the Fifth Amendment, which states that you cannot be forced to use your own words against you in a court of law. Judge Westmore stated in her opinion, "If a person cannot be compelled to provide a passcode 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."

Cell Phones Aren't Totally Off Limits to Law Enforcement

Keep in mind that this does not mean that information on your phone is protected from the police at every level. Rather, Judge Westmore stated that one can't just be forced to turn over the information to the police. Law enforcement will have to go through traditional, more formal methods, such as subpoenas or court orders to Facebook and other testimonial evidence.

For instance, in the case of the deadly shooting in San Bernardino, California in 2015 that killed 14 people, the FBI did not win its battle to force Apple to unlock the phone. But ultimately the FBI did indeed get in, but paid $900,000 to do so. Also note, this does not apply to phone checks by Custom and Border Patrol Agents at the airport, which can still require people to unlock their phones using biometrics, due to risk of flight and national security.

If you feel that your constitutional rights have been violated by overly broad, or non-existing, search warrants, contact a local civil rights attorney. There are constitutional limits to searches of electronic devices. A lawyer can advise you of your rights and can help you understand the next steps to take to protect your privacy.

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