Ninth Circuit Court Order – Biometrics are Testimonial

A district court in California has issued an order finding that biometrics are testimonial – denying the Government’s application for a search warrant that would have included the authority to compel suspects to unlock their cellphones using biometrics like fingerprint, face, or iris recognition.

Okay – it’s the Ninth Circuit, often disregarded as the most “liberal” circuit in the country. But also, it’s the Ninth Circuit, where sensible ideas begin, and the rest of the nation follows…

The ruling is not binding on the rest of the country’s district courts, and we have already seen contradictory rulings from different district courts in different jurisdictions. Next, we may see contradictory appellate opinions from different circuit courts of appeals, until the US Supreme Court settles the issue.

What is the state of the law currently on whether police can force you to unlock your cellphone with biometrics? Are biometrics testimonial?

Can Police Use My Fingerprint to Unlock My Cellphone?

The law is lagging far behind the development of new technologies, and the state of the law when it comes to applying Fourth Amendment principles to new technologies is still a guessing game.

Before Judge Westmore’s Order, it seemed likely that police could force you to unlock your cellphone with biometrics:

  • Police cannot force a suspect to give them the passcode to their cellphone because that would be “testimonial” and violate the person’s right not to incriminate themselves under the Fifth Amendment; but
  • Police can force a suspect to open a cellphone with their fingerprint, retina scan, or facial identification software.

Police can force you to provide a DNA sample if they first obtain a search warrant based on probable cause – is that the same as forcing you to put your thumbprint on your cellphone?

Police must get a search warrant based on probable cause before they can access your cell phone – they cannot rely on a “search incident to arrest,” but there are exceptions including searches of cellphones at the border.

Although police can obtain a search warrant to search your phone, the question is: Can they obtain a search warrant authorizing them to force you to unlock your phone?

If the act of unlocking your cellphone is testimonial, forcing you to do it, even with a search warrant, is a violation of your Fifth Amendment right against self-incrimination. Forcing a person to provide their passcode for their phone is clearly testimonial and a violation of the Fifth Amendment.

But what about forcing you to put your thumb on your phone or hold your face in front of your phone’s camera? Some courts, including a Virginia state court and a federal district court in Los Angeles, have held that police can force a person to unlock their phone with their fingerprint.

But is the act of opening your phone with a fingerprint, facial recognition, or other biometrics testimonial? I would say that it is, considering that most people’s smartphones contain a wealth of information about the person’s personal life. At least one district court judge in California agrees…

Unlocking a Cellphone with Your Fingerprint is Testimonial

In the California case, law enforcement applied for a search warrant for the home of two persons who were under investigation for extortion – allegedly using Facebook Messenger to threaten to distribute an embarrassing video of the alleged victim unless he paid them money.

The government asked the Court to authorize them to:

  • Search the residence;
  • Seize various items including electronic devices; and
  • Compel any person present at the residence to unlock their devices with their fingerprint, facial recognition, or iris recognition.

The Court found that there was probable cause for the search warrant but refused to sign the warrant because to force individuals to unlock their devices would violate both the Fourth and Fifth Amendments.

Law Enforcement Wanted to Search the Cellphones of Any Person Present

First, the Court found that law enforcement’s request to force any individual present at the location to unlock their cellphones is overbroad.

It’s overbroad because the request was not limited to any particular person or a particular device. Two suspects were named in the search warrant, but law enforcement wanted to search the devices of any person?

Thus, the Court finds that the Application does not establish sufficient probable cause to compel any person who happens to be at the Subject Premises at the time of the search to provide a finger, thumb or other biometric feature to potentially unlock any unspecified digital device that may be seized during the otherwise lawful search.

Similarly, it is overbroad to request to search all devices at a location regardless of who the devices belong to – “[t]he Government cannot be permitted to search and seize a mobile phone or other device that is on a non-suspect’s person simply because they are present during an otherwise lawful search.”

Use of Biometrics to Unlock a Cellphone is Testimonial

So, it violates the Fourth Amendment to issue a search warrant authorizing the search of all devices belonging to any person who is present at the home because there is no probable cause to search the devices of unidentified, unknown individuals who may or may not be present at the time of the execution of the search warrant.

What about the two suspects – surely there is probable cause to search their devices on which they allegedly sent messages extorting the alleged victim?

There may be probable cause to seize and to search the devices, but to force the suspects to unlock their phones would be testimonial:

  • Courts have found that forcing someone to provide a passcode would be testimonial because “[t]he expression of the contents of an individual’s mind falls squarely within the protection of the Fifth Amendment.”
  • Biometrics – fingerprints, facial recognition, or iris recognition – are nothing more than a shortcut to the person’s passcode.

Biometrics serve the exact same purpose as a passcode – to secure the owner’s content on their device – which makes biometrics and passcodes “functionally equivalent.”

Biometric security measures are not comparable to compelling a suspect to provide a DNA sample or fingerprint for comparison – the latter, which does not violate the Fourth or Fifth Amendments – is physical evidence. Biometric passcodes are **passcodes**. They are entitled to the same protection as a string of numbers or letters which is just a passcode in different form…

As the Court states:

Courts have an obligation to safeguard constitutional rights and cannot permit those rights to be diminished merely due to the advancement of technology… Citizens do not contemplate waiving their civil rights when using new technology, and the Supreme Court has concluded that, to find otherwise, would leave individuals “at the mercy of advancing technology.”

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