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.…’”
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.’”
Not 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.