Gabriel Malor: 9th Cir.: it did not violate the Fifth Amendment privilege against self-incrimination for police officer to forcibly use suspect's thumb to unlock his phone bc the use of a thumbprint/biometric was not testimonial and he had already authenticated the phone. cdn.ca9.uscourts.gov/datastore/op...

9th Cir.: it did not violate the Fifth Amendment privilege against self-incrimination for police officer to forcibly use suspect's thumb to unlock his phone bc the use of a thumbprint/biometric was not testimonial and he had already authenticated the phone. cdn.ca9.uscourts.gov/datastore/op...

I was prepared to be outraged until I read the opinion and learned that he already had to provide access to his phone per his parole agreement. Reasonable conclusion here given the circumstances. I don’t like it on principle, but I get it.

Thanks for that context.

If his parole agreement said they had access to his phone, couldn't they just violate him for refusing to unlock it?

("violate him" intended as slang to mean they would record his status as being in violation of his terms of parole, not intended as meaning something horrible cops might do to a person)

This is an important clarification!

Gabriel, relatedly I'm curious if my current understanding is accurate: a police officer can use biometrics like your face or fingerprint to unlock your phone and courts don't see this as a 4A violation, but if your phone is pin-protected and you tell them to go screw, they then need a warrant?

(your original post is different of course because it's 5A and as Warren pointed out, access to the parolee's phone was a parole condition)

😂😂 Wouldn’t be an issue if we had a more common sense and constitutionally-minded approach to qualified immunity, but 🤷‍♂️

"might"

Absolutely. The opinion does go out of its way to distinguish the facts here from a broader application in other cases. I’m still uncomfortable with the whole concept of no warrant searches under any circumstance, but I doubt the courts will ever claw that one back, particularly for parolees.

So, back to patterns or pins for unlocking phones.

So they can grab your finger against your will and forcibly use it to unlock your phone, but they can't make you tell them which finger they need to grab

I'll tell which finger they can use, I'll show them the finger, in fact.

Jesus jumped up Christ

The amount of respect I’ve lost for judges and the law in general…

Tip: if you briefly press and hold two opposite side buttons on the iPhone (like you are trying to turn your phone off), it will turn off face and thumbprint recognition and make it so you have to input your passcode to unlock the phone.

📌

I can't recall whether this requires toggling some setting first, but quickly pressing the right-side (lock) button 5 times in a row puts you in the same mode. More presses, but I find this one easy to remember and quite quick too.

For iPhones with a power button, holding it long enough to get the “slide to power off” screen (2-3 seconds) does the same thing, even if you cancel and don’t power off. As with all such tips, you should test and familiarize yourself with the process before you need it.

Was the right against self-incrimination the only relevant protection against the cops trying to gain access to everything on his phone, and everything connected to his phone?

Yea. In this case he signed a parole agreement consenting to the search of his phone so there’s no search and seizure issue

That sucks. Also, I wonder how they think other biometric methods might differ.

Hey, is it okay if I unlock a phone by waving it in from of the face of an unconscious person? Asking for corrupt cops

* front, not from

Yes, it absolutely is. Both Android and iPhone have functions called "lockdown mode" which, when activated, disabled all biometric authentication and forces the phone to require a PIN or Password which require a warrant to force. If you're likely to encounter police ENABLE THIS.

That one seems the same as forcing someone's thumb onto the phone. I'm trying to imagine when they think it might not be ok for the cops to force a biometric scan, cause I can't imagine it being significantly different than this.

They might need a warrant to overcome a 4th amendment challenge but no this wouldn’t violate the 5th amendment cause the image of your face isn’t testimony

I think Apple's facial recognition actually tries to determine if you're unconsious/eyes are closed and won't unlock in that case for that exact reason. Pixel's facial recognition at least won't open if your eyes are closed. Just tested. I know it's not as robust as the Apple method though.

Yet, I've never gotten a positive response from a cop when I asked them to pull my finger.

Love living in a police state that’s only getting worse

When people ask me why, as a security and privacy professional, I advise people not to use biometric authentication for their mobile devices, I am going to point them at this case.

I like how they reference the outrageous practice of taking blood against your will as justification. Why has that not been challenged?

It has. Supreme Court says no that’s not testimonial per Schmerber v. California (1966)

I don't think the government has the right to take my bodily fluids without my permission - whether or not the fifth amendment applies is not the issue.

It’s fine to argue they shouldn’t. As a matter of bioethics that’s totally fair. As a matter of law the government does have that right, which is why for instance you can be arrested in many states for refusing a breathalyzer test.

This is a little in the weeds but also I have an exam about this exact thing this week so forgive nerding out

I encourage nerding out.

I think as a matter of law that should be revisited until we find the argument for why it's unconstitutional. Maybe a right to privacy or something. IANAL, as I'm sure you can tell.

You do have a right to privacy in this sort of thing. The 4th amendment would normally require a warrant for it, as warrants are required for lots of would-be privacy violations. He consented to the search though as a condition of parole. He had the right not to and not take the parole.

The thing is, your opinion doesn't change the reality you have to interact with. I don't think they should have the right, but they unquestionably do.

So basically if you think you'll be encountered switch your phone to pin only. Noted.

This is, unfortunately, the correct line to draw post Birchfield and Bernard because the testimonial requirement of the 5th amendment is extremely weird.

tbh what this says to me is that the current jurisprudence doesn't make sense because it involves increasingly bizarre "what is SPEECH" distinctions.

What is testimony, basically. Cops can sometimes make you do things, they can’t make you say things. They can’t even use Unmirandized things you say if they don’t even care about the information itself (Muniz) but they can use physical contents of your lungs by making you deepthroat a tube (Bernard)

Now you might ask, why don’t they need a warrant to make you deepthroat a tube? Well, cause they’re looking for alcohol and your body is currently destroying the evidence by metabolism. So that’s an emergency.

ok but why analyze that as a testimonial issue and not a search and seizure issue-it's evidence of the present physical condition of your body

By asking why they don’t need a warrant I am analyzing it as a search/seizure issue. Normally they’d need a warrant, cause it’s search and seizure. But essentially your body is doing the equivalent of flushing drugs down the toilet so the police don’t need a warrant to bust in and collect evidence.

FBI used Eastman’s face to unlock his phone when they arrested him. ‘He was patted down, and "forced to provide [facial] biometric data to open" the phone, Eastman's court filing said.’ amp.cnn.com/cnn/2022/06/...

John Eastman searched and had phone seized by federal agents last week, he saysamp.cnn.com FBI seized the phone of former President Donald Trump's election attorney John Eastman last week, according to a new court filing from the conservative lawyer.

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