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Judge Rules Against Forced Fingerprinting (thestack.com) 126

An anonymous reader quotes a report from The Stack: A federal judge in Chicago has ruled against a government request which would require forced fingerprinting of private citizens in order to open a secure, personal phone or tablet. In the ruling, the judge stated that while fingerprints in and of themselves are not protected, the government's method of obtaining the fingerprints would violate the Fourth and Fifth amendments. The government's request was given as part of a search warrant related to a child pornography ring. The court ruled that the government could seize devices, but that it could not compel people physically present at the time of seizure to provide their fingerprints "onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device." The report mentions that the ruling was based on three separate arguments. "The first was that the boilerplate language used in the request was dated, and did not, for example, address vulnerabilities associated with wireless services. Second, the court said that the context in which the fingerprints were intended to be gathered may violate the Fourth Amendment search and seizure rights of the building residents and their visitors, all of whom would have been compelled to provide their fingerprints to open their secure devices. Finally, the court noted that historically the Fifth Amendment, which protects against self-incrimination, does not allow a person to circumvent the fingerprinting process." You can read more about the ruling via Ars Technica.
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Judge Rules Against Forced Fingerprinting

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  • by Anonymous Coward

    Also, doesn't this amount to forcing people to provide evidence that can potentially incriminate them?

    • by TWX ( 665546 )
      If I understand the government's side of the argument, a fingerprint is not simply a password or other set of abstract information that courts have previously generally allowed to remain secret. A fingerprint is also a real-world structure that the courts have allowed to be sampled by law enforcement from those arrested. It's right on the body, so it's not truly secret as it is obscure.

      If I were going to use a fingerprint I would use it as the equivalent of the username, or as an alternate means of ent
      • A fingerprint is also a real-world structure that the courts have allowed to be sampled by law enforcement from those arrested.

        You've also described a key. Would law enforcement be able to take your keys and search your house, car, attaché case, etc. without the proper warrant?

        • They had a warrant, so ... yes, they would be allowed to use any keys on site to open locked areas. They can also force physical locks open.

          • In that case, I side with the cops, as unpopular as that may be.

            If there is a warrant issued for the contents of your phone, and you carry the keys around with you at all times, law enforcement should be allowed to use those keys, biometric or otherwise.

            That said, I've got a few of caveats: This is by warrant only. Not at a routine traffic stop, border crossing, or similar. This shouldn't include any rubber-stamp FISA warrants, but that's a separate issue. It also shouldn't include warrants that broadly say

            • by ejasons ( 205408 )

              In that case, I side with the cops, as unpopular as that may be.

              Actually, it seems that the analogy would be the cops grabbing everyone's keys in the office, and then using the keys to go snoop through their homes. I don't believe that such a warrant would be granted or, if granted, would be constitutional, just like I don't think that this was constitutional, simply because of the broadness...

              • That's kinda what I was getting at with the caveats. I wouldn't support a blanket warrant for every phone in the office (or some other arbitrary scope) in the same way that you wouldn't see a warrant to search every house in a city block. But if you have a specific warrant to get into someone's phone, and that person secured their phone with their fingerprints... then yeah, law enforcement should be allowed to execute that warrant
    • Ah that pesky 5th amendment (along with the 4th) and the limits it puts on law enforcement. Finally a judge that seems to understand the constitution.

      I'm guessing though that if law enforcement wants to log into your device, there are other ways in. Didn't we just have a story about that today?

      However, be it known that the 5th and 4th amendments don't keep you from being compelled to provide evidence in some circumstances. Best you consult a criminal lawyer before providing or refusing to provide informa

      • by TWX ( 665546 ) on Thursday February 23, 2017 @07:07PM (#53921175)

        Best you consult a criminal lawyer before providing or refusing to provide information you are asked. There are times you cannot refuse.

        That may be rather difficult to do if you're detained and they're not willing to release you. I suppose that you could use your phone to make a call...

        • Ah come on, you've seen this in all the crime investigation process dramas in the past decade. When the police ask you a question, YOU ask to consult your lawyer and according to your Miranda rights, you must be given access to your lawyer, end of questioning for the time being...

          Now, I normally don't recommend you obtain legal knowledge watching TV shows, but in this case, there is enough truth here to be relevant.

          I DO however recommend you shut up and consult your lawyer at any point you are not total

          • by Anonymous Coward

            Unless you are at the US border.

            • by green1 ( 322787 )

              or they feel like using the word "terrorist"
              or they just don't feel like following the constitution today
              or....

              There's a reason I have no desire to visit your backwards country. I'll stick to countries with a somewhat reasonable human rights record thanks.

        • That may be rather difficult to do if you're detained and they're not willing to release you. I suppose that you could use your phone to make a call...

          I love dry humor. Let's hope this gets modded up.

      • Your legal advice at the end is backwards. You should always refuse to provide information until you have spoken to an attorney.
        • I'm not sure if the problem was reading comprehension or unclear writing.... But that's what I thought I said... Consult an attorney before answering (or refusing to answer) questions, when being questioned by law enforcement as part of an investigation...Take your lawyer's advice.

          You say something along the lines of "I'd like to answer your questions, but I must consult my lawyer first." Which is not refusing to answer, nor answering.

      • by tlhIngan ( 30335 )

        Ah that pesky 5th amendment (along with the 4th) and the limits it puts on law enforcement. Finally a judge that seems to understand the constitution.

        Not really.

        The issue is similar to using a Stingray or IMSI catcher - besides getting "the crook", you're getting a bunch of innocent people who are simply bycatch.

        The judge simply knows you cannot force a bunch of innocent people to become suspects simply because they were present near the location. So whether it's unlocking their phones with fingerprints, or

    • Yes, I read the judgement and the court wrote that there is a fifth amendment concern. Specifically, the judge pointed to another major ruling recently that by unlocking a phone via a password (or fingerprint), the person is effectively testifying that it is their phone, under their control, and they can decrypt and encrypt it.

      Also, the application for the warrant was deficient on traditional fourth amendment grounds, specificity of what and who would be searched, and what the police expected to find where.

  • don't get confused (Score:5, Informative)

    by supernova87a ( 532540 ) <kepler1@NoSpaM.hotmail.com> on Thursday February 23, 2017 @07:02PM (#53921141)
    Don't read this story as a ruling against the police / government being allowed to compel individuals suspected of criminal activity to be forced to give fingerprints. That is not what's at issue here, and the decision doesn't affect that.

    This story is that the wholesale screening of individuals that the police have no otherwise suspicion of a crime, shotgun style, is being ruled against. Just like the case several years ago when police sought to have an entire small town's male population give DNA samples to match some evidence they had of a sex crime. The judge in this case tossed out the willy nilly use of police power to compel people wholly unrelated to the issue, not under suspicion at all, from having to give evidence.

    When you're suspected of something specifically, you can definitely still be compelled. Just like being compelled to give a breathalyzer, or DNA when a court orders you to.

    But as a more practical matter anyway, 10 tries of different people's fingerprints, and the phone will be wiped regardless... so there's a limit to how useful the technique would've been to begin with.
    • by rsilvergun ( 571051 ) on Thursday February 23, 2017 @07:46PM (#53921377)
      and the judge saw right through it. What worries me is if we keep putting folks like Trump in charge of the Executive and he stacks the courts with folks who will ignore the rule of law. They're already forming a new court to get around the more liberal ones that run out of California...
      • They're already forming a new court to get around the more liberal ones that run out of California...

        Bwahaha, you mean the fucking Ninth Circuit? The one that, on appeal to the Supreme Court, gets overturned a whopping 80 percent of the time? Yeah, I think any court with that kind of failure rate should be disbanded, as well.

        There's some supreme nuttery going on out in California these days...

        • by Anonymous Coward on Thursday February 23, 2017 @08:50PM (#53921609)

          You're conveniently forgetting that less than 0.2% of the Ninth Circuit's cases are ever referred to the USSC. And those that are, are by definition the ones where the losing party feels they have the best shot.

          So by "80% failure rate", you actually mean "less than 0.16% failure rate".

          But please, don't let mere math stand in the way of your mindless partisan hackery. After all, it's only facts.

        • is packed with right wing idealogs like Thomas who couldn't give a nun's left bollock (yes, I meant to write that, think about it) about rule of law. And wasn't that my whole point and look I've gone cross eye now >--...
          • Oh yes, it's the right-wingers setting up sanctuary cities to harbor illegals against the rule of law. Do you think people are supposed to believe you just because you decide to let some of your verbal diarrhea out of your mouth?

            Try again, asswipe.

          • Actually the court was a balanced 4-4 with Kennedy swinging back and forth based on the case merits. Currently it's a 4-4ish tie but again Kennedy is likely to swing his vote based on the topic of the case. On social issues he's usually going to side with the left side of the court. On law enforcement type issues he leans to the right.

            But don't let facts get in the way of your opinions.
        • by PopeRatzo ( 965947 ) on Thursday February 23, 2017 @10:13PM (#53921889) Journal

          Bwahaha, you mean the fucking Ninth Circuit? The one that, on appeal to the Supreme Court, gets overturned a whopping 80 percent of the time? Yeah, I think any court with that kind of failure rate should be disbanded, as well.

          There's some supreme nuttery going on out in California these days...

          I often see this repeated by people who don't know shit.

          First of all, when the Supreme Court takes a case, it overturns the Appeals Court decision in over 70% of the cases. They only grant a writ of certiorari in cases where they see an issue and it usually means they will be overturned. And despite what you read on Breitbart, the 9th Circuit is not the most overturned Appeals circuit. Kentucky/Ohio/Michigan's 6th Circuit has that distinction with an 87 percent rate of being overturned. Then comes Alabama/Florida/Georgia's 11th Circuit with a record of 85 percent. But the fact is, if your case goes to the Supreme Court, it's odds-on that it will be overturned.

          6th Circuit - 87 percent;

          11th Circuit - 85 percent;

          9th Circuit - 79 percent;

          3rd Circuit - 78 percent;

          2nd Circuit and Federal Circuit - 68 percent;

          8th Circuit - 67 percent;

          5th Circuit - 66 percent;

          7th Circuit - 48 percent;

          DC Circuit - 45 percent;

          1st Circuit and 4th Circuit - 43 percent;

          10th Circuit - 42 percent.

          • Wait, do, do you think that an 80% failure rate is good just because there are courts with HIGHER rates?

            I see you use the classic communist tactics of building up a strawman (highest rate, Breitbart, etc. none of which I mentioned) and somehow proving how smart you are by knocking it down.

            Obviously, many of the courts are fucked. And the Ninth is by far and away one of the most batshit-insane groups of assholes in the nation. The fact that you stick up for them speaks volumes.

            • by PopeRatzo ( 965947 ) on Friday February 24, 2017 @12:10AM (#53922207) Journal

              Wait, do, do you think that an 80% failure rate is good just because there are courts with HIGHER rates?

              Let me slow it down for you:

              Only about 1.01% of the circuit court's rulings go to Supreme Court. By definition, these are cases that SCOTUS has looked at and seen enough of a problem that they granted a writ of certiorari. If they didn't see a problem, they'd just bounce it back.

              So, of the 1% that goes to SCOTUS, 80% of those are overturned and 20% are affirmed. That means the true rate of 9th Circuit cases being overturned is closer to 0.8%, not 80%.

              I mentioned Breitbart, because you will only find this spurious claim of "The 9th Circuit gets overturned 80% of the time" will only be found in websites that cater to alt-Right jackoffs. And they will never mention that the courts with the highest rates of being overturned are in solid red states.

              Now, do we have some clarity on this issue?

              You're still looking bemused. Let me put it more simply: 80% of the 9th Circuit's rulings are not overturned, you stupid sonofabitch.

            • by Altrag ( 195300 )

              It might be. I've not looked into it so just throwing out a theory, but I would assume that most people don't bother putting the time and money into appeals that they're guaranteed to lose, so you'll drop a significant number of cases that flat out wouldn't be overturned right off the bat, thus increasing the relative fraction of those that will be overturned.

              If there's also some sort of pre-review to further knock off ones that the appealer thinks might have a chance but the court doesn't, again the ratio

              • It might be. I've not looked into it so just throwing out a theory, but I would assume that most people don't bother putting the time and money into appeals that they're guaranteed to lose...

                If there's also some sort of pre-review to further knock off ones that the appealer thinks might have a chance but the court doesn't, again the ratio pushes in favor of cases that get overturned.

                Your theory is correct. There's a good discussion of the issue here [stackexchange.com].
                From the link:

                This would give an approximate breakdown of 84.7% of cases weren't even considered by the Supreme Court, 15.1% of cases were declined by the Supreme Court, 0.12% of cases were overturned, and 0.03% of cases were confirmed."

      • Yet Trump has yet to get any court nominations confirmed. All sitting Federal Judges are from prior Presidents, not Trump. The everything is his fault line just doesn't work this early in his administration.

        And yes there is talk (but no action yet) of breaking up the 9th circuit into two circuits. Which makes sense for more reasons than the fact that it is by far the most overturned court in the nation.(80% of rulings in 2015 were overturned, that's a pathetic performance. It's also the most overworked
        • by Eristone ( 146133 ) * <slashdot@casaichiban.com> on Friday February 24, 2017 @10:03AM (#53923455) Homepage

          80% of rulings overturned in 2015? From the kindly folks at politifact [politifact.com]:

          The 9th Circuit is by far the largest circuit. In the 12 months leading up to March, 31, 2015, just under 12,000 cases were filed in the 9th Circuit — more than 4,000 more than the next-largest circuit, the 5th Circuit. Despite that gigantic docket, the Supreme Court heard just 11 cases from the 9th Circuit in 2015, reversing eight.

          So, if you look at the total numbers (which you have to to match the statement you made), the Supreme Court only overturned 8 out of about 12000 rulings. (or .066%)

          I hope in real life you don't deal with math like "give someone 80% of a dosage of 5% solution" or anything else that relies on numbers.

    • by tlhIngan ( 30335 )

      But as a more practical matter anyway, 10 tries of different people's fingerprints, and the phone will be wiped regardless... so there's a limit to how useful the technique would've been to begin with.

      No.

      On iOS, you get 3 tries to use the fingerprint reader. If you fail, it reverts to the backup security method (PIN, etc). You cannot use the fingerprint reader until the phone is successfully unlocked via this backup method.

    • But as a more practical matter anyway, 10 tries of different people's fingerprints, and the phone will be wiped regardless... so there's a limit to how useful the technique would've been to begin with.

      It's worse than that: If I was to engage in illegal activities, I would make sure that the finger to open my phone is not my thumb. I would train a single other finger into all the trainable spots in the phone OS (I think it lets you train 4 or 5?). That way when the cop tries to open with my fingerprint and it doesn't work, the first thing he would do is try it again or try my other thumb. Not realizing that it takes my right ring finger to open the device.

  • The rational and intelligent states of Illinois, California, and New York are doing what they can to limit the federal insanity. Please give them whatever support you can.

  • What this is really about: Can the government demand that you take some action? It doesn't matter whether this is a matter of seconds, hours, or months: Are you the government's slave, to command as it wishes?

    If it were just about fingerprints, then the government could collect your fingerprint from something you touched, reproduce it on an artificial fingertip, and unlock the phone*. There is nothing at all stopping them from doing this, but that's not the precedent that they want to set.

    *This isn't even p

    • by dbIII ( 701233 )

      using glue and other ordinary household stuff

      Acetate tape and an acetone based solvent (as in diluted acetone) does it well enough to examine at high resolution with an optical microscope.

  • How is this different than looking at my face?

    Do you need a warrant to take my picture?
    That can be incriminating. I just don't get it.

    Sure, if you have my prints, you could plant them at a crime scene. (Difficulty level = High).
    But if you have my photo, you can fabricate "witnesses" that say I did something. (Difficulty level = Low).

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