American police might think it’s acceptable to force people to unlock smartphones with their fingers, but increasingly U.S. judges are disagreeing. In Idaho, a just-unsealed ruling from Judge Ronald E. Bush said police couldn’t demand the owner of a Google Pixel 3 XL use her finger to unlock the phone to allow for a forensic search.
The ruling comes just four months after California judge Kandis Westmore ruled a search warrant did not give police the authority to unlock devices with fingerprints, faces or irises. She said it would have trampled over the Fifth Amendment, which protects Americans from self-incrimination.
There are few details about the Idaho case available. The ruling reveals an unnamed individual is being investigated for possible possession of child pornography. When the police entered a property of interest, they found the Google device in a bathroom. But it was locked and they didn’t have the tech to break through Google’s encryption to access the data within.
Despite the limited details, Judge Bush request would have violated the individual’s Fifth Amendment rights. Judge Bush agreed with Westmore in saying that a fingerprint was “testimonial”—information that an individual willingly gives to the government and can be withheld to protect the person from self-incrimination.
Under the Fifth Amendment, a person is not protected from handing over biometric or bodily information, such as a blood sample or a fingerprint for identification. A cellphone passcode, however, has previously been determined protected because it amounted to information willingly submitted from the suspect’s mind. In past cases, fingerprints and faces were not deemed the same as a passcode, even though they had the same effect of opening a device and all the data on the private life of the owner. Police were therefore given permission to force devices open with those biometric features.
But Judge Bush, citing a similar previous ruling in Illinois in 2017 that was overturned, wrote: “The same constitutional heartwood is found in this case, where the use of the individual’s biometrics (specifically, the fingerprints) may incriminate the individual by providing evidence of some association or ‘relatively significant connection’ with the phone and, therefore, its contents.
“In sum, what the government would characterize as innocuous is instead a potentially self-incriminating testimonial communication because it involves the compelled use of biometrics—unique to the individual—to unlock the phone. The Fifth Amendment does not permit such a result.”
Judge Bush went further in saying that the warrant would’ve represented a breach of the Fourth Amendment, which protects citizens from unreasonable searches. He made that assertion simply because the breach of the Fifth inherently meant that the search was unreasonable.
The government is continuing to fight its corner, however. Shortly after Judge Westmore’s denial in January, the government obtained warrants to search the phones related to the investigation without the use of biometrics. But later in the month, it also filed a request that her order be vacated, fearing Judge Westmore would continue to deny requests for forced fingerprint unlocks. Indeed, the government said she’d turned down such warrants shortly after her first ruling. A filing from the government on May 1 reiterated its position.
As noted in the government’s original protest at Westmore’s order, “a live controversy exists here.”