Judge rules U.S. law enforcement cannot compel biometrics to unlock device

Police in the U.S. cannot compel people to unlock their mobile devices with fingerprint or facial biometrics, a California judge has ruled in a decision spotted by Forbes.

Previous rulings had found that law enforcement officers can force individuals to unlock smartphones with their biometrics, despite not being allowed to force them to share or input a password. In a decision related to an investigation of an alleged extortion case, Northern District of California Judge Kandis Westmore ruled that fingerprints and facial images are testimony, rather than physical evidence when considered in the context of device unlocking, and therefore subject to the same Fifth Amendment protections as passwords, which are considered testimony. Police had sought a search warrant for a property, during which they intended to force any smartphone found to be unlocked with a fingerprint, face, or iris scan.

In her ruling, Judge Westmore noted that “technology is outpacing the law.” She also compared the biometric features to “the 20 nonverbal, physiological responses elicited during a polygraph test, which are used to determine guilt or innocence, and are considered testimonial.”

Westmore also noted that law enforcement officers could ask Facebook, over which platform the extortion is alleged to have taken place, to turn over communications, which, as Forbes notes, the social media giant has done in the past.

Electronic Frontier Foundation Senior Staff Attorney Andrew Crocker said that considering biometric data as equivalent to passwords because of the purpose of the data being asked for is a step beyond those taken by other courts.

“While that’s a fairly novel conclusion, it’s important that courts are beginning to look at these issues on their own terms,” Crocker told Forbes. “In its recent decisions, the Supreme Court has made clear that digital searches raise serious privacy concerns that did not exist in the age of physical searches—a full forensic search of a cellphone reveals far more than a patdown of a suspect’s pockets during an arrest for example.”

In October it was reported that American police have been advised by a forensics consultant against accidentally triggering Face ID by looking at suspect’s phones, in order to avoid them requiring a password after exceeding the maximum allowable biometric unlock attempts.

A similar decision was made in Illinois in 2017, but Forbes notes that it was reversed on appeal.

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