Cops serve warrant to enter property, demand everyone's fingerprints to unlock phone

What about the Fourth or Fifth Amendments?

Cops serve warrant to enter property, demand everyone's fingerprints to unlock phone

US law enforcement served a modified search warrant that allowed agents to collect the thumbprints and fingerprints of everyone at the premises.

The warrant is not publicly available at this time. But a court filing dated 9 May 2016 provides some insight into the lengths to which the Department of Justice was willing to go to investigate a property in Lancaster, California.

The document reads:

"The government submits this supplemental authority in support of its application for a search warrant which seeks authorization to depress the fingerprints and thumbprints of every person who is located at the SUBJECT PREMISES during the execution of the search and who is reasonably believed by law enforcement to be the user of a fingerprint sensor-enabled device that is located at the SUBJECT PREMISES and falls within the scope of the warrant. The government seeks this authority because those fingerprints, when authorized by the user of the device, can unlock the device."

It goes on to state that in order for them to access those devices, law enforcement agents were authorized to pursue "the seizure of ‘passwords, encryption keys, and other access devices....'"

Fingerprint phone

Wait a second. Doesn't the Bill of Rights protect against those types of activities on the part of law enforcement? What about the Fourth Amendment, which guarantees the right against unreasonable searches and seizures? Or the Fifth Amendment, which states no person will be forced to answer for a crime unless a grand jury indicts them?

Yeah, about that....

The DOJ attorneys dedicated much of the court filing to discuss why the Fourth and Fifth Amendments don't apply.

For instance, they argue the Fourth Amendment comes into play only when authorities unlawfully detain a suspect or conduct an "intrusion into the body" like a blood test without a warrant. Neither of those scenarios transpired as a result of this particular warrant.

As for the Fifth Amendment, they present this argument:

"Compelling a person to provide his or her fingerprint does not implicate, let alone violate, the Fifth Amendment. 'Both federal and state courts have usually held that [the Fifth Amendment] offers no protection against compulsion to submit to fingerprinting.' Schmerber v. California, 384 U.S. 757, 764 (1966). That is so because the Fifth Amendment privilege against self-incrimination only prevents the use against an accused; of testimonial or communicative evidence obtained from him. Id. As the Supreme Court explained in Schmerber, that prohibition does not apply to the use of a person?s Id. at 763 (quoting Holt 'body as evidence when it may be material.'"

FingerprintNot surprisingly, some high-profile privacy advocates are up-in-arms about the court-filing.

For instance, Jennifer Lynch, senior staff attorney at the Electronic Frontier Foundation (EFF), told Forbes that the DOJ and law enforcement "need to set up a way to access only the information that is relevant to the investigation."

Perhaps no one is upset about this more than the family who received the warrant, however.

One resident of the searched property told Forbes no one there has ever been convicted of a crime:

"They should have never come to my house. I did not know about it till it was served… my family and I are trying to let this pass over because it was embarrassing to us and should’ve never happened."

Warrants like these represent an escalation of law enforcement's efforts to access suspected criminals phones, especially after the FBI decided to purchase a tool that allowed them to access the iPhone of one of the San Bernardino shooters when Apple refused to cooperate.

It's up to us to raise awareness about these types of cases. With enough awareness and perhaps some legal disputes along the way, let's hope this type of blanket search warrant never becomes law.

Tags: ,

Smashing Security podcast
Check out "Smashing Security", the new weekly audio podcast, with Graham Cluley, Carole Theriault, and special guests from the world of information security.

"Three people having fun in an industry often focused on bad news" • "It's brilliant!" • "The Top Gear of computer security"

Latest episode:

,

8 Responses

  1. richard konsky

    October 19, 2016 at 5:12 am #

    its a finger print just turn your iPhone all the way off then your finger won't work also they can't search you without your consent.

    • Graham Cluley in reply to richard konsky.

      October 25, 2016 at 8:19 am #

      Which is why I always ensure my iPhone is completely switched off before going through airport security.

  2. Phil Potts

    October 19, 2016 at 11:09 am #

    Because of this, you should not configure your iPhone to authenticate using Touch ID. You can enable Touch ID and use it for online banking authentication (if offered) without using it for device sign-on. This type of warrant is an over-reach of egregious proportions. And we still don't know why. Did someone use their phone at that address to call a DOJ official a kukka-head? Was that the "crime"? I wouldn't be surprised.

  3. Ian Johnson

    October 19, 2016 at 2:09 pm #

    Just use your nipple instead of your finger

    • Graham Cluley in reply to Ian Johnson.

      October 25, 2016 at 8:21 am #

      I wonder if this is why Scaramanga had a third nipple? The man with the (rose) golden iPhone?

  4. Tom Smith

    October 19, 2016 at 3:03 pm #

    "They" most definately CAN search you without your consent. That is what a warrant permits. Read the Fourth amendment. And an "all the way turned off iPhone" can be turned back on.

    The more cogent argument is that insufficient probable cause exists to require every person to provide a fingerprint. It is a bit like racial profiling and based on information that possibly is not sufficient as to any specific individual to justify a warranted search. But, it is probably a close call.

  5. A. Schmidt

    October 19, 2016 at 9:32 pm #

    As nasty as this incident is, the problem it creates for the average person is that public characteristics of people, such as the appearance of their faces, the color of their hair, and their fingerprints have not be generally held to fall under the restrictions of either the 4th or 5th amendments, to the best of my knowledge. Hell, even getting a DNA sample from swabbing your mouth seems to be outside the range of protection of these laws, so taking your thumbprint definitely falls into the area of no protection from warrants.

  6. coyote

    October 23, 2016 at 12:58 am #

    Bill of rights.

    Yes.. keep telling yourselves that if it makes you feel better.

    As for it not implicating you what they're really saying it isn't directly (maybe it does and maybe it does not here but depending on the circumstances it could). But what government would actually admit that?

    I'm afraid this is perfectly in character and I suspect most people accept it too since it supposedly makes everyone safer. But of course they can't keep their own secrets safe so why should they have everyone's 'secrets' too? They shouldn't. But they have to for control, fear, dominion, power.

Leave a Reply