US court decision: the authorities have no right to force a person to unlock the phone with his finger or face
The US authorities cannot force a citizen to unlock a phone that is protected by biometric methods, such as a face scan (such as a Face ID) or a finger scan (Touch ID, etc.). Although biometric protection is easily cracked , the user has the full right to refuse to participate in this procedure and no one can force it. This decision was taken on January 10, 2019 by a federal judge in Oakland, California.
Previously, it was decided that the Fifth Amendment applies to passwords and pincode: disclosing a password equals to self-incrimination. But the police believed that they could still finger or use the suspect’s face to unlock the phone. Now all authentication methods are equal in rights: any coercion of a person to unlock the phone is prohibited by the Fifth Amendment, which protects against testifying against himself. A similar article is in the Constitution of the Russian Federation.
The nine-page court decision was taken on the basis of the consideration of the criminal case, which is classified in the rest of the details, that is, the names and other details about the participants in the process are unknown. Although the essence of the matter is briefly described: two suspects committed extortion through Facebook Messenger. They extorted money from the victim, threatening to publish a “frank” video otherwise. The first of the case and the court's decision yesterday reported edition of the Forbes .
Judge Candice Westmore (Kandis Westmore) found that the government’s request to unlock the phone using biometrics in this case “contradicts the fourth and fifth amendments,” which protect against unreasonable searches and self-incrimination, respectively. The decree states that the requirements of law enforcement agencies are excessive. In addition, the judge noted that the authorities are prohibited to “search and seize a mobile phone or other device that is not from the suspect, but from another person,“ simply because he is present during a legal search. ”
Independent lawyers believe that this is a step in the right direction: “Access to people's phones, in my opinion, is much more similar to access to brain contents than to the contents of the cabinet,” saidBlake Reid, a law professor at the University of Colorado, in Ars Technica comments . From this angle, a search warrant is not a reason to search the telephone.
Judge Westmore several times quoted the decision of the Supreme Court in 2018: "Citizens do not consider the possibility of waiving their civil rights when using the new technology," she wrote, referring to the aforementioned decision.
This is not the first such decision of the American court. It resembles the decision of 2017 in a similar federal case in Illinois: there the federal court also refused to law enforcement agencies to extract evidence collected by forcibly unlocking a smartphone with biometric protection.
In the previous case, the judge quoted a federal search warrant in which it was noted that such coercion to unlock the phone was “standard practice”. However, in that case, the judge also concluded that this practice is contrary to the Fifth Amendment.
In the current criminal case, the court noted that law enforcement agencies may receive information of interest in a different way: “In this case, the government may receive any Facebook Messenger messages from Facebook in accordance with the Law on Stored Messages or a Warrant ... Try to gain access by violating the Fifth Amendment against self-incrimination, is an abuse of power and unconstitutional. "
Apparently, the court ruling and norms of the Constitution apply only to US citizens and do not apply to foreigners who enter the United States on a tourist, student or guest visa. Currently, foreign nationals may undergo a more thorough screening process, including checking the contents of a computer and a mobile phone. There is evidence that in some cases, the authorities even check the profile on the social networks of a foreigner who is trying to visit America.