N.D.Ill.: Compelling persons to provide fingerprints to unlock Apple devices doesn’t violation the self-incrimination clause of the Fifth Amendment

An order compelling persons to provide fingerprints to unlock Apple devices doesn’t violation the self-incrimination clause of the Fifth Amendment. In re Search Warrant Application for [Name Redacted by the Court], 2017 U.S. Dist. LEXIS 169384 (N.D. Ill. Sept. 18, 2017):

The United States seeks review of the magistrate judge’s denial of one aspect of the government’s search-warrant application in this investigation: authorization to require the four residents of a home to apply their fingers and thumbs (as chosen by government agents) to the fingerprint sensor on any Apple-made devices found at the home during the search. Ordinarily, review of the magistrate judge’s decision on a warrant application would be ex parte. But because the magistrate judge’s thoughtful opinion addressed a novel question on the scope of the Fifth Amendment’s privilege against self-incrimination, the Court invited the Federal Defender Program in this District to file an amicus brief to defend the decision (the government did not object to the amicus participation). The Court is grateful for the Federal Defender Program’s excellent service in fulfilling this request. After reviewing the competing filings and the governing case law, the Court holds that requiring the application of the fingerprints to the sensor does not run afoul of the self-incrimination privilege because that act does not qualify as a testimonial communication.