Apple’s Face ID has been used by police to get into the phones of suspects before. Now the FBI and ... [+]
The FBI has some new language in search warrants that allow agents to force people to unlock their smartphones, tablets and PCs with their face, finger, iris or whatever other part of their body opens up their tech. It appears that the government is trying to show how it can limit such searches so as not to infringe on the privacy of people who happen to be at a property at the time of a search. But at the same time they’re offering false hope that people can opt out of such searches via Apple’s Face ID, Google’s Android alternative and other such biometric technologies.
Over in Tacoma, Washington, a search warrant on the residence of a man suspected of possessing and sharing child exploitation material allowed law enforcement personnel “to compel the subject person to provide biometric features, including pressing fingers (including thumbs) against and/or putting a face before the sensor, or any other security feature requiring biometric recognition.” That was for any device that was deemed to be his.
But it went further, saying that law enforcement could not compel the person to say which body part would open the device. “This warrant does not authorize law enforcement personnel to request that the subject person state or otherwise provide the password or any other means that may be used to unlock or access the devices, including by identifying the specific biometric characteristics (including the unique finger(s) or other physical features) that may be used to unlock or access the devices.”
Why this new language? Judges in some states have slapped down warrants where any person in a searched residence could be told to open their device with a biometric feature. Legal experts have also previously noted a dissonance in American law around such searches: On one side, police are not allowed to demand someone to provide their pass code because that would be deemed “testimonial” and go against Fifth Amendment protections from self-incrimination. At the same time, though it has the same effect of opening up someone’s private digital life, they’re often permitted to hold up a phone to someone’s face and unlock it that way.
The federal government has now tried to navigate that issue by writing in the warrant that the subject of the search can refuse to provide information on what kind of login they use. That should prevent any issues that arise should someone decide, after the search, they didn’t know they were able to keep schtum on what they use to access their phone data.
The language is being replicated, albeit with slight alterations, beyond Washington. On the other side of the country, in West Virginia, a broader warrant can be found, filed by the Department of Homeland Security’s criminal investigation unit, allowing police to not just search the phones of the two named suspects in another child exploitation material investigation, but those of anyone inside a house in Kanawha County. While allowing investigators to force fingerprints down or hold up a device to someone’s face to get that crucial unlock, the warrant says law enforcement could not “request that any individual state or otherwise provide the password or any other means that may be used to unlock or access the devices.”
The defendant in the West Virginia case has been charged but not yet offered a plea. His counsel had not responded to a request for comment at the time of publication. Because the suspect in the Washington case hasn’t been named, Forbes is withholding his identity and publication of the search warrant.
In both cases, the eventual impact will be much the same: With such warrants in hand, police can take a phone and have it unlocked on-site with ease, regardless of whether or not the suspect wants to share how they use their body.
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