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Privacy The Courts Cellphones Crime Iphone

Virginia Court: LEOs Can Force You To Provide Fingerprint To Unlock Your Phone 328

schwit1 writes with news of a Circuit Court decision from Virginia where a judge has ruled that a criminal defendant cannot use Fifth Amendment protections to safeguard a phone that is locked using his or her fingerprint. According to Judge Steven C. Fucci, while a criminal defendant can't be compelled to hand over a passcode to police officers for the purpose of unlocking a cellular device, law enforcement officials can compel a defendant to give up a fingerprint. The Fifth Amendment states that "no person shall be compelled in any criminal case to be a witness against himself," which protects memorized information like passwords and passcodes, but it does not extend to fingerprints in the eyes of the law, as speculated by Wired last year. Frucci said that "giving police a fingerprint is akin to providing a DNA or handwriting sample or an actual key, which the law permits. A passcode, though, requires the defendant to divulge knowledge, which the law protects against, according to Frucci's written opinion."
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Virginia Court: LEOs Can Force You To Provide Fingerprint To Unlock Your Phone

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  • by roc97007 ( 608802 ) on Friday October 31, 2014 @06:10PM (#48283855) Journal

    Yet another reason not to use biometrics to unlock devices.

    • Re: (Score:2, Interesting)

      by BasilBrush ( 643681 )

      ... if you are carrying incriminating evidence on your phone, or you have other reasons, perhaps political for needing it to remain secret.

      Not defending this in any way. Just pointing out that for the average person, it probably doesn't make finger-print locks problematic.

      But if you need to keep stuff secret from the authorities, use a good password on a phone OS with good security.

      • by nikhilhs ( 1292298 ) on Friday October 31, 2014 @06:17PM (#48283925)
        You'd be surprised how many felonies and misdemeanors they could find on your phone. If they find anything suggesting you committed a crime, they can make your life hell for quite a while. This affects everybody.
        • Re: (Score:2, Insightful)

          by Anonymous Coward

          "Everybody" doesn't have information on their phone suggesting they committed a crime. Contrary to the "three felonies a day" extremist conspiracy wackos, most people are above police suspicion.

          • by Moof123 ( 1292134 ) on Friday October 31, 2014 @06:34PM (#48284075)

            Go through your email inbox sometime. Try thinking like a paranoid below average intelligence cop with a daily quota to meet and read the last dozen or so emails you sent out of context, same with recent text messages. Innocent statements taken out of context can be bent and twisted in a cop's, or prosecutor's head.

            Got pictures of your toddler daughter playing in the sprinkler or bath tub on there somewhere? You might not want them looking through there and charging you with distributing child pornography.

            The broader point is that a large percentage people have much of their personal lives on the phone. Anything that make that makes that easily accessible to the police without your consent is a big deal. Information that we kept in our home file cabinet just a decade or two ago is now on our phone, so anything that makes it easier to search a phone than a house is a big step backwards in our freedom.

            • by Shakrai ( 717556 ) on Friday October 31, 2014 @08:00PM (#48284629) Journal

              Got pictures of your toddler daughter playing in the sprinkler or bath tub on there somewhere? You might not want them looking through there and charging you with distributing child pornography.

              This is FUD; have you actually read any legal statues regarding child pornography? Here's the Federal statute, 18 U.S. Code 2252 - Certain activities relating to material involving the sexual exploitation of minors, emphasis mine:

              (a) Any person who —
              (1) knowingly transports or ships using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mails, any visual depiction, if—
              (A)the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
              (B)such visual depiction is of such conduct;

              (There are also other sections that cover simple possession, rather than distribution, but they use the same two pronged definition from (A) and (B) above, so I've omitted them here for the sake of brevity.)

              Here's New York State's statute, Penal Law Article 263:

              S 263.11 Possessing an obscene sexual performance by a child.
              A person is guilty of possessing an obscene sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control, or knowingly accesses with intent to view, any obscene performance which includes sexual conduct by a child less than sixteen years of age.

              Definition from that same chapter:

              "Sexual conduct" means actual or simulated sexual intercourse, oral sexual conduct, anal sexual conduct, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.

              • by myowntrueself ( 607117 ) on Friday October 31, 2014 @08:09PM (#48284681)

                lewd exhibition of the genitals.

                So basically, if it gives the judge an erection you are in big trouble.

              • by haruchai ( 17472 )

                You can still be arrested, fingerprinted, processed and held. The prosecutor will probably decide that pursuing it any further is a waste of time but you've still been arrested, are still in the system and have enjoyed a relaxing weekend with some of society's finest who will be oh-so-understanding when you tell them that you've been hauled in for totally innocent photos of your kids.

                • Yes and if you should happen to get into a fight with one of your fellow upstanding citizens while in holding they will then have a legitimate charge to keep you on for longer. Now that your fingerprints and potentially other identification is in the system now if you've ever been in the same room where a crime happens in the future they might come knocking: unfortunately fingerprints don't come with a timestamp. You might very well be held innocent on each case but why should you even be identifiable? Just

            • by mariox19 ( 632969 ) on Friday October 31, 2014 @08:13PM (#48284697)

              Seriously. A friend of mine had his ex-wife (they're on good terms) send him a picture of their daughter, who was something like 4 at the time. The girl was riding a toy horse, and but for a cowboy hat was buck naked. The ex thought it was cute; my friend was upset that she would encourage things like that. I told him to get that picture the fuck off his phone before he gets pulled over (he had a lead foot and a weed habit), arrested, and the cops find a photo like that on his phone. He saw the wisdom in that right away.

              You can't be too careful. There are cops and attorneys at the D.A.'s office who like nothing better than to put the screws to people, at the smallest provocation; and in this "zero tolerance" world, you're guilty until you prove yourself innocent.

          • most people are above police suspicion.

            you mean under the police radar? given any reason at all (rub the wrong way for example), they'll look, and they'll certainly find.

        • by BasilBrush ( 643681 ) on Friday October 31, 2014 @06:30PM (#48284035)

          You'd be surprised how many felonies and misdemeanors they could find on your phone.

          I wouldn't be at all surprised. They'll find none. Don't assume everyone is like you.

          • by sconeu ( 64226 ) on Friday October 31, 2014 @07:16PM (#48284383) Homepage Journal

            Quoth Cardinal Richilieu:

            If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged.

          • I wouldn't be at all surprised. They'll find none. Don't assume everyone is like you.

            You mean that unlike virtually everyone else alive, you of all people perfectly sure that you've never broken any law or ordinance?

        • Don't give up your fingerprint without having hired a lawyer to represent you. For the most part they can't just go looking for new crimes, although for sure they'll try particularly if no one is watching your back.

        • by Tom ( 822 )

          You'd be surprised how many felonies and misdemeanors they could find on your phone.

          In fact, I would. Tell me more. What makes you so sure of this?

          Sure they can find something that with enough creative interpretation someone could see as hinting to a crime, if they only squint strongly enough. But something that passes the giggle test? Share your wisdom.

          • You really don't get it, do you? If they're at the point where they're searching your phone, they've already decided you're guilty. At that point, if they don't find any evidence they'll just plant some.

            • by Tom ( 822 )

              At that point, if they don't find any evidence they'll just plant some.

              That is a possibility, yes. But then we're talking a different game and it was not what the GP claimed.

          • by haruchai ( 17472 )

            Are you saying there's absolutely nothing on your PHONE that could possibly incriminate you? Or does that extend also to all your electronic devices or to your entire life?

            • Are you saying there's absolutely nothing on your PHONE that could possibly incriminate you?

              Nope. Mine's a Qualcomm QCP-1900 from 1998 (yes, it still works great) - let them look :-)

          • Sure they can find something that with enough creative interpretation someone could see as hinting to a crime, if they only squint strongly enough. But something that passes the giggle test? Share your wisdom.

            And that's enough, to make your life a living hell for a certain amount of time (be it brief or long, doesn't matter).

        • by bmo ( 77928 )

          You'd be surprised how many felonies and misdemeanors they could find on your phone. If they find anything suggesting you committed a crime, they can make your life hell for quite a while. This affects everybody.

          You know those pill organizers, because you're taking so many drugs each day (heart, etc)?

          If you carry around prescription drugs without the actual bottle without the actual sticker, it's a felony. This actually happened to one of the members of my DBSA group.

          No, you do *not* have permission to sea

      • The problem is you don't know what will be incriminating. You happen to have a phone on your phone that has the murder victim in the background? You can't say you never saw them can you? The ME gives a 4hr hour window of when the guy died and you happened to have been in the same location within that window presto circumstantial evidence. Just the nuance factor alone can make it not worth it to progress from the casual interview to a full blown person of interest and now you need to get yourself a lawyer, s

    • by Trailer Trash ( 60756 ) on Friday October 31, 2014 @06:33PM (#48284055) Homepage

      Yet another reason not to use biometrics to unlock devices.

      Also yet another reason to stay the hell away from Virginia. I hope that the next time someone tries to create a free country they look at our example and build in safeguards against stupid judges, law enforcement officers, DAs, etc. And when I say "safeguards" I mean literal criminal penalties for this sort of stuff.

      • Also yet another reason to stay the hell away from Virginia.

        This statement, given the context of your Slashdot username, struck me as highly funny.

    • by eth1 ( 94901 ) on Friday October 31, 2014 @06:56PM (#48284211)

      Yet another reason not to use biometrics to unlock devices.

      Time for a feature like "Right index finger unlocks, left index finger wipes most things, then unlocks."

    • no it isn't. When the bacon-chompers try to force you to unlock your iPhone with a fingerprint, just use a finger other than the one you trained the device on. When that doesn't work ("It's flaky and my finger is sweaty, you know...") authentication falls back to the passcode you set up for the device. You now have Fifth Amendment protection.

  • It's easy (Score:5, Funny)

    by xaotikdesigns ( 2662531 ) on Friday October 31, 2014 @06:18PM (#48283929) Homepage Journal
    Just chew them off which ever finger print unlocks the phone. They don't get your info, and you get an insanity plea.
  • by justcauseisjustthat ( 1150803 ) on Friday October 31, 2014 @06:18PM (#48283931)
    So what's next you can be forced to be scanned and have your thoughts read, it's not testifying in the verbal or written sense. Letter by letter realtime [medicalnewstoday.com]

    Tooo slippery...
    • by Kjella ( 173770 )

      Who knows? The main argument has been against the compelling part, if they can read your mind through involuntary responses that may be legally permissible. They probably can't get a confession that way, but they might gather leads on what you may recognize or feeling or whatever. They show you a picture of your dead wife, your brain goes to hate. That cute secretary you have a secret affair with triggers a quite different and legally interesting response. And photos from where the body was dumped triggers

  • by sjbe ( 173966 ) on Friday October 31, 2014 @06:25PM (#48283999)

    Kind of gives a new meaning to giving the cops the finger...

  • So if a cop ever demands you unlock your phone for them, be sure to give them the finger!

  • by mysidia ( 191772 ) on Friday October 31, 2014 @06:36PM (#48284089)

    This is like being required to sign your name.

    The security feature on your phone is designed to not unlock unless you signify approval.

    Giving up a key or DNA sample is not signifying your approval; it's just surrendering information which is stored outside your brain.

    • How is gaining access to the contents of your phone not "just surrendering information which is stored outside your brain"?

      Your phone and its contents are evidence and once a warrant is issued (which I hope is still a requirement) it is fair game. What is not fair game, thanks to the American constitution, is to say "Either you can tell us that you committed the crime and we can send you to jail for the confession or you can tell us you didn't and we can send you to jail for perjury."

      The password on your ph

      • Information outside your brain is just information that you'd otherwise have to remember. To say that they can compel you to help them get this information, and that doing so isn't a violation of the 5th amendment, is authoritarian nonsense. The information may well be incriminating, and I see no reason why government thugs should be able to force you to help them.

        They can try to retrieve the information using other means, of course.

    • Giving up a key or DNA sample is not signifying your approval; it's just surrendering information which is stored outside your brain.

      Technically isn't your fingerprint also information which is stored outside your brain? How is this really any different than requiring you to surrender a key to a locked filing cabinet? You could make the exact same argument about that as well: the key is just a means to signal approval.

      Police already use fingerprint information to identify where you have been and what you have handled so you are already required to surrender this information. If you choose to have this information unlock your phone th

      • by mysidia ( 191772 )

        How is this really any different than requiring you to surrender a key to a locked filing cabinet?

        The key is a physical piece of property just like your physical phone which can be lawfully seized.

        Technically isn't your fingerprint also information which is stored outside your brain?

        Your fingerprint is information, BUT the application of your fingerprint to indicate your approval is a kind of signature, just like if you can't write, going to the bank, and using your fingerprint to approve a with

    • Really? You can be required to sign something with your name in the US even if you don't want to? If that's true, then you're not living in a free country.

  • by watermark ( 913726 ) on Friday October 31, 2014 @06:39PM (#48284103)

    Chop the finger off and burn it. Better than some sentences that could be handed out.

  • Duh (Score:2, Informative)

    Police have been collecting finger prints for decades, and they have caught thousands, if not millions, of criminals they otherwise wouldn't have caught as a result.

    All this judge said was that you using your fingerprint on your phone doesn't give you a "get out of fingerprinting free" card when you get arrested. If it did every criminal in America would lock their phone with a fingerprint so they didn't have to get fingerprinted.

  • Timeout (Score:5, Interesting)

    by Bodero ( 136806 ) on Friday October 31, 2014 @06:49PM (#48284167)

    iOS implements this simply: after 48 hours of not logging in, or a phone reboot, it requires a passcode.

    Any decent lawyer should be able to postpone any forcible press.

    That being said, we are slowly losing our liberties.

  • by Tom ( 822 ) on Friday October 31, 2014 @06:55PM (#48284209) Homepage Journal

    What about the knowledge of which finger to use? Can they just try them all?

    • by swb ( 14022 )

      That was my first thought. Use only one, inconvenient digit held at a strange angle as your unlock code.

      Maybe they should have a self-destruct fingerprint that causes a wipe.

    • What you really want is a combination lock where you have to touch in with a combination of 6 fingers: you'd the convenience of biometrics and the protection of a pass code.
  • by DreamMaster ( 175517 ) on Friday October 31, 2014 @07:00PM (#48284263) Homepage

    If that's the case, then a possible solution would be an encryption that unlocks on one specific finger's fingerprint, but deletes all phone data for the other nine fingers. Since the ruling says you have to provide your fingerprints fine, but the knowledge of which finger's fingerprint is the correct one is knowledge in your brain, which doesn't have to be divulged. This would also, obviously, need to be combined with secure hardware that prevents the cops from simply copying the data and trying the fingerprints one at a time with the copy.

    That way, you still have the convenience of a fingerprint unlock, but extra security against seisure, since the cops would only have a 10% chance of guessing the right finger.

    • by ledow ( 319597 )

      And an almost certain charge of contempt of court and destruction of evidence.

      The law is worded the way it is so that you can't be held liable for a password that you set ten years ago, or something you were told briefly and don't stand a chance of remembering now. Just because the court KNOWS you know, it doesn't mean they can punish you if you can't remember it.

      It's not there to provide innocent defence when you are trying to hide information, but that's an unfortunate side effect.

      However, as you've said

      • Warning them whether or not it will delete the phone if you chose the wrong one is itself a protected admission I think. How would you know that feature is enabled it is isn't your phone? If they otherwise prove that the phone is yours can they prove that you know whether or not that feature is currently enabled?

  • by GospelHead821 ( 466923 ) on Friday October 31, 2014 @07:15PM (#48284379)

    Get the best of both biometric security AND passcode security. Use somebody else's fingerprint to unlock your phone but refuse to divulge the knowledge of whose fingerprint!

    • Plus, free chili.

    • ...but refuse to divulge the knowledge of whose fingerprint!

      well, you're kinda going to give it away when they say you can make your one phone call and you say "bring me George Frinkle".

      Now, what you should do is make it your lawyer's finger so it won't be so obvious when you say "I need to talk to my lawyer". Why do you need to talk to your lawyer? You don't have to tell them that. And your lawyer's finger may be covered under attorney-client privilege!

    • by PPH ( 736903 )

      Which finger?

      How many failed swipe attempts will cause the phone to fall back to a passcode (protected by law)? How do they know you are swiping the correct finger?

  • According to this Apple support page [apple.com]: "If Touch ID doesn't recognize your finger, you'll be asked to try again. After three attempts, you'll be given the option to enter your passcode. After two more tries, you'll need to enter your passcode."
  • by EmperorOfCanada ( 1332175 ) on Friday October 31, 2014 @08:06PM (#48284663)
    The Supreme Court defended needing a warrant to search a phone based upon the idea that a phone contained so much of a person's life. So the interesting thing here will be how much of a fishing expedition will be allowed, in that the cops would love to look for all crimes instead of evidence to back the one that they got the warrant for.

    But where this is sort of funny is that most criminals don't even maintain their right to silence and blah blah about their innocence while the cops lead them down the path to either a confession or a whole lot of information such as why they were there and the relationship with the victim and so on. So to a certain extent I wonder if the cops are sad now that the evidence doesn't just land in their laps anymore.

    Where all these privacy features are coming from is not that companies like Apple think that there is a huge market selling phones to criminals and terrorists but that the real criminals are the government types who want to violate all our rights and privacies on a routine basis and that like any sane group of people we want to prevent them from doing just that; thus we seek out products that will block them as a routine and easy feature.

    So when the average consumer hears the FBI or the NSA whining that a phone is too secure that average consumer will flock to that device.
    • Yeah criminals always make me laugh on Cops.

      "You don't mind if I search your car do you?"

      "No problem man."

      Followed 10s later with the cop pulling out an AK and a kilo of coke.

      "Man that's not mine. I give lots of people rides it must be one of them."

      I don't see it happen in Canada where I live but if that show is any indication it seems like in pretty much every state the cops try there damnest to search your vehicle and pat everyone in the car down even on routine traffic stops. You just did a slow roll thr

  • by qeveren ( 318805 ) on Friday October 31, 2014 @08:46PM (#48284859)

    Have GOT to be loving this decision. I hope nobody here on /. holds stock in any of them... XD

  • I thought LEO was Low Earth Orbit (like where the ISS is)

    • I still remember attending a presentation where the presenter used a number of acronyms, and every single one was a completely different acronym in my career field. It could have been one of those 'fill in the sentences with ridiculous stuff'.

      LEO also stands for Law Enforcement Officer. ;)

  • IOS Power Off (Score:4, Insightful)

    by Fnord666 ( 889225 ) on Saturday November 01, 2014 @12:05AM (#48285569) Journal
    If you have an IOS device that uses fingerprint authentication, power it off before the police can seize it. When it reboots it will require the passcode before fingerprint access works.
  • by berchca ( 414155 ) on Saturday November 01, 2014 @11:41AM (#48287521) Homepage

    Program odd fingers to unlock the phone, then offer up your thumb to unlock it. After three tries it fails and requires your passcode, rendering your data safe. Right?

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