For the first time in a federal case, a suspect has been ordered to use her fingerprint to unlock her iPhone using Touch ID. The LA Times reports that a federal judge signed a warrant allowing the FBI to compel a suspect in an identity theft case to to unlock the phone just 45 minutes after her arrest.
Authorities obtained a search warrant compelling the girlfriend of an alleged Armenian gang member to press her finger against an iPhone that had been seized from a Glendale home […]
In the Glendale case, the FBI wanted the fingerprint of Paytsar Bkhchadzhyan, a 29-year-old woman from L.A. with a string of criminal convictions who pleaded no contest to a felony count of identity theft.
The warrant is consistent with a 2014 case where a Virginia District Court ruled that while passcodes are protected by the 5th Amendment right against self-incrimination, fingerprints are not. Legal experts, however, have differing views …
Fingerprints are currently viewed by the law as ‘real or physical evidence,’ meaning that law enforcement has a right to access to them without a warrant. However, some law professors say that this view is now outdated when a fingerprint can provide access to incriminating data.
“It isn’t about fingerprints and the biometric readers,” said Susan Brenner, a law professor at the University of Dayton who studies the nexus of digital technology and criminal law, but rather, “the contents of that phone, much of which will be about her, and a lot of that could be incriminating.”
Others, however, disagree.
Albert Gidari, the director of privacy at Stanford Law School’s Center for Internet and Society, said the action might not violate the 5th Amendment prohibition of self-incrimination. “Unlike disclosing passcodes, you are not compelled to speak or say what’s ‘in your mind’ to law enforcement,” Gidari said. “‘Put your finger here’ is not testimonial or self-incriminating.”
In this particular case, the argument will go no further: Bkhchadzhyan pleaded ‘no contest’ to a felony count of identity theft. There seems little doubt, however, that some future case will make it to the Supreme Court.