N.D.Ill.: SW for fingerprints if iPhone is found is rejected as to fingerprints; Riley also informs and narrows the 5A concerns

The government’s search warrant application also seeks fingerprints from any persons found there on execution if any iPhones are found. That part of the warrant application is denied. The cases permitting fingerprint production predated Riley and the issues it presents. “The considerations informing the Court’s Fourth Amendment analysis of a cell phone’s role in modern day life, we believe raise Fifth Amendment concerns as well. We do not believe that a simple analogy that equates the limited protection afforded a fingerprint used for identification purposes to forced fingerprinting to unlock an Apple electronic device that potentially contains some of the most intimate details of an individual’s life (and potentially provides direct access to contraband) is supported by Fifth Amendment jurisprudence.” In re A Search Warrant, 2017 U.S. Dist. LEXIS 23861 (N.D.Ill. Feb. 16, 2017):

In the instant case, the government argues that the presentation of a fingerprint is not testimonial because under Doe v. United States, 487 U.S. 201 (1987), “To be testimonial, an act must involve communication and ‘an accused communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.'” (Gvt. Mem. at 2.) Yet, the connection of the fingerprint to the electronic source that may hold contraband (in this case, suspected child pornography) does “explicitly or implicitly relate a factual assertion or disclose information.” Doe, 670 F.3d at 1342. The connection between the fingerprint and Apple’s biometric security system shows a connection with the suspected contraband. By using a finger to unlock a phone’s contents, a suspect is producing the contents on the phone. With a touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.

The government cites United States v. Wade, for the proposition that the Fifth Amendment privilege against self-incrimination offers no protection against compulsion to submit to fingerprinting. (Gvt. Mem. at 2) (citing Wade, 388 U.S. 218, 223). This case, however, was decided in 1967, prior to the existence of cell phones, and in the context of utilizing fingerprinting solely for identification purposes. In the context of the Fifth Amendment, this Court finds these two starkly different scenarios: using a finger print to place someone at a particular location, or using a fingerprint to access a database of someone’s most private information. The Wade court could not have anticipated the creation of the iPhone nor could it have anticipated that its holding would be applied in such a far-reaching manner. In fact, the Supreme Court has said “[t]he term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Riley v. California, 134 S. Ct. 2473, 2489 (2014).

The societal concerns of privacy raised in Riley provide an important backdrop to the issue presented in the instant case. The Riley court recognized that the modern day cell phone, based in part on the personal and intimate information aregularly stored on such devices, is subject to higher Fourth Amendment protections than other items that might be found on a person. Id. at 2485. The considerations informing the Court’s Fourth Amendment analysis of a cell phone’s role in modern day life, we believe raise Fifth Amendment concerns as well. We do not believe that a simple analogy that equates the limited protection afforded a fingerprint used for identification purposes to forced fingerprinting to unlock an Apple electronic device that potentially contains some of the most intimate details of an individual’s life (and potentially provides direct access to contraband) is supported by Fifth Amendment jurisprudence.

In closing, upon presentation of the warrant application to this Court, the government identified for this Court that the warrant application was seeking the forced fingerprinting discussed herein. The government further noted “[t]his is the language that we are making standard in all of our search warrants.” This declaration of standardization is perhaps the crux of the problem. As the Court hopes it is plain from the above, the issues presented here require a fact-intensive inquiry both for purposes of the Fourth Amendment and the Fifth Amendment. This opinion should not be understood to mean that the government’s request for forced fingerprinting will always be problematic. In circumstances where the existence and nature of the electronic information sought is a “foregone conclusion,” Fifth Amendment jurisprudence tells us that the concerns noted above may be obviated. Similarly, under Fourth Amendment jurisprudence where there is an individualized showing more firmly establishing a connection between an individual and criminal conduct, the Fourth Amendment concerns raised herein may fall to the wayside. Indeed, after the execution of this warrant, the government may garner additional evidence that addresses both of these concerns such that the government can promptly apply for additional search warrants. We simply are not there yet.

For the reasons stated, the Court does not find, under the circumstances presented here, that the government has established a proper basis to force any individual at the subject premises to provide a fingerprint or thumbprint in an attempt to unlock any Apple device that may be found.

Remember that the USMJ does this on his or her own because search warrant proceedings are not adversarial, so there is no brief from the target of the search.

Written about in:

Forbes, Federal Court: Cops Can’t Just Walk Into A Building And Force Unlock iPhones With Fingerprints by Thomas Fox-Brewster with a copy of the opinion.

Ars Technica: Judge: No, feds can’t nab all Apple devices and try everyone’s fingerprints by Cyrus Farivar

WaPo: The Volokh Conspiracy, Judge rejects warrant provision allowing compelled thumbprints to unlock iPhones by Orin Kerr

BankInfoSecurity: Federal Judge Rejects Fingerprint Collection by Jeremy Kirk

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