A USMJ in the N.D.Cal. holds that the use of a court order to compel any biometric information (fingerprint, facial recognition, eye scan) is testimonial and violates the Fifth Amendment. United States v. Sealed Warrant, 2019 U.S. Dist. LEXIS 147836 (N.D. Cal. Aug. 18, 2019, unsealed Aug. 26, 2019):
Several magistrate judges and district court judges across the country, as well as a few state courts, have recently addressed the specific question of whether compelled application of a biometric feature to an electronic device is a testimonial communication. This Court agrees with those courts that have concluded that requiring an individual to use a biometric feature to unlock an electronic device so that its contents may be accessed is an act of production that is inherently testimonial in the context of a criminal investigation. See, e.g., In the Matter of the Search of a Residence in Oakland, Cal., 354 F. Supp. 3d 1010 (N.D. Cal. 2019); In re Appl. for a Search Warrant, 236 F. Supp. 3d 1066 (N.D. Ill. 2017); In the Matter of the Search of a White Google Pixel 3 XL Cellphone in a Black Incipio Case, No. 1:19-mj-10441-REB, 2019 U.S. Dist. LEXIS 83300, 2019 WL 2082709 (D. Idaho May 8, 2019), vacated ___ F. Supp. 3d ___, 2019 U.S. Dist. LEXIS 125243, 2019 WL 3401990 (D. Idaho July 26, 2019). Here, compelling an individual who is a target of the investigation to use his or her finger or face to unlock a device represents incriminating testimony within the meaning of the Fifth Amendment because it amounts to an assertion of fact that the individual has the ability to unlock the device; which in turn makes it more likely that the individual locked the device and put the material sought by the warrant on the device. See, e.g., United States v. Spencer, No. 17-cr-00259-CRB, 2018 U.S. Dist. LEXIS 70649, 2018 WL 1964588, at *2 (N.D. Cal. Apr. 26, 2018) (explaining testimonial nature of compelling defendant to decrypt devices).
As the United States acknowledges, a consensus has emerged that a suspect may not be compelled to divulge his or her password to law enforcement, as that would require disclosure of the contents of the suspect’s own mind. U.S. Brief at 12; see also FPD Letter at 9. The Court finds no meaningful distinction between unlocking a device with a password and unlocking a device with a biometric feature. In each case, an individual must program the device to accept the input that unlocks it, whether that input is a password or the application of a finger, reflecting the same level of control over and connection to the device and its contents. The two means of locking and unlocking a device are functional equivalents.
For these reasons, this Court disagrees with those courts that have concluded that compelling application of a biometric feature is no different than compelling the provision of non-testimonial physical evidence. See, e.g., In the Matter of the Search of a White Google Pixel 3 XL Cellphone in a Black Incipio Case, ___ F. Supp. 3d ___, 2019 U.S. Dist. LEXIS 125243, 2019 WL 3401990 (D. Idaho July 26, 2019); In re Search Warrant Appl. for [Redacted Text], 279 F. Supp. 3d 800 (N.D. Ill. 2018); In re Search of [Redacted] Washington, D.C., 317 F. Supp. 3d 523 (D.D.C. 2018). Unlike a fingerprint or blood sample, which is obtained for the purpose of identifying a particular individual, the only purpose of compulsory application of a biometric feature to a device is to obtain access to the device’s contents; the government has no interest in obtaining the physical characteristic (e.g., the fingerprint) per se.
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The United States certainly runs the risk that the circumstances in which the devices are found will not support application of the “foregone conclusion” doctrine and that any compelled, incriminating testimony will be subject to suppression. The Court acknowledges that it would prefer the United States to apply for a court order compelling application of biometric features (or other means) to unlock an electronic device only after the device has been seized and after the record is more fully developed about the state of the government’s knowledge. See, e.g., In the Matter of the Search of a Residence in Aptos, California 95003, No. 17-mj-70656-JSC-1, 2018 U.S. Dist. LEXIS 45827, 2018 WL 1400401 (N.D. Cal. Mar. 20, 2018) (deciding motion to compel decryption under the All Writs Act, 28 U.S.C. § 1651, following seizure of devices pursuant to search warrant), aff’d sub. nom. United States v. Spencer, No. 17-cv-00259-CRB, 2018 U.S. Dist. LEXIS 70649, 2018 WL 1964588 (N.D. Cal. Apr. 26, 2018). But, this Court is not convinced that that approach is constitutionally required when the search warrant identifies the devices to be seized and the contents to be searched sufficiently to meet the requirements of the Fourth Amendment.
Judge Breyer suggests that the government should be required to show by clear and convincing evidence that a particular individual has the ability to decrypt or unlock a particular device. Spencer, 2018 U.S. Dist. LEXIS 70649, 2018 WL 1964588, at *3. And he further observes that if the government is able to meet this standard, such that the act of decryption is a foregone conclusion and is not testimonial, then the government may not make direct use of the evidence that he or she has unlocked the device. Id. This Court does not reach either of these issues. Rather, the Court has authorized a search warrant that contains the direction it believes accurately describes the limited circumstances in which application of an individual’s biometric feature can be compelled based on the facts presented in the government’s application:
During the execution of the search of the SUBJECT PREMISES described in Attachment A, law enforcement personnel are authorized to compel [named individuals] to apply their respective biometric feature(s) to a smartphone or other electronic device capable of being unlocked by such feature in order to search the contents of the device as authorized by this warrant, but only if the following conditions are met:
(1) the device is found on the person of one of the individuals named above or at the SUBJECT PREMISES; and
(2) as to a particular device, law enforcement personnel have information that the particular individual who is compelled to apply his or her biometric feature(s) has the ability to unlock that device, such that his or her ability to unlock the device is a foregone conclusion.
For purposes of this warrant, the application of a biometric feature refers to compelling an individual to depress his or her thumb-and/or fingerprints on the fingerprint reader of a device, or compelling an individual to face a device with his or her eyes open in order to activate the facial-, iris-, or retina-recognition feature of the device.