In the aftermath of Apple's battle with the FBI over the San Bernardino shooter's iPhone, you might think that authorities can't force you to unlock a smartphone with your fingerprint. But you'd be wrong. A federal judge in Los Angeles recently reaffirmed this fact by issuing a warrant that made a defendant try to unlock an iPhone using its Touch ID sensor.
The Los Angeles Times reported yesterday (May 1) that court documents show that Paytsar Bkhchadzhyan, 29, who pleaded no contest to a felony count of identity theft on Feb. 25, was ordered to provide her fingerprints to help unlock a Touch ID sensor on an iPhone seized from a home she had connections to. The Times said an FBI agent "took her print" within a couple of hours of Bkhchadzhyan's court appearance. It's not clear if the phone was successfully unlocked.
This may all be surprising, but it shouldn't be. What's the first thing that happens when you're arrested and booked? Your fingerprints are taken. Fingerprints are physical evidence of identity, just like height or eye color. They're legally very different from passwords, which are (usually) considered knowledge and/or speech and, arguably, are constitutionally protected.
One expert the L.A. Times spoke to argued that the judge violated Bkhchadzhyan's Fifth Amendment right against self-incrimination, which suspects invoke when they demand "I plead the Fifth." But another expert, Albert Gidari, director of privacy at Stanford Law School's Center for Internet and Society, told the Times that "'Put your finger here' is not testimonial or self-incriminating."
"The claim that the 5th Amendment blocks govt forcing a person to put thumb on phone to unlock it just wrong," tweeted Orin Kerr, a noted technology-law expert, following the publication of the L.A. Times story.
The Times notes that the iPhone in question was seized at a residence linked to Sevak Mesrobian, who is reportedly Bkhchadzhyan's boyfriend. The Times said Mesrobian was suspected to be a member of Armenian Power, a former street gang that has grown into a powerful organized-crime group in Southern California.
In October 2014, a Virginia state judge ruled that police could force a domestic-violence suspect to unlock his smartphone with his fingerprint, but could not force him to disclose his password. (However, a suspect in a Philadelphia federal child-pornography case has been jailed for seven months for contempt of court for not decrypting two hard drives.)
The FBI in the Bkhchadzhyan case probably had to act quickly and carefully. If an iPhone is not unlocked for more than 48 hours, or is powered down and then back up again, Apple's Touch ID will not work and the user must enter a passcode. The same happens if five incorrect fingerprints are entered in a row.
Nevertheless, smartphone users should know that fingerprint locks will never keep their data out of the hands of the law. Judges differ over whether passwords are protected under the Fifth Amendment — that issue has never gone before the Supreme Court — but in the case of fingerprints, the law appears to be settled in favor of the authorities.