Biometric authentication is often positioned by companies like Apple, Samsung, and Microsoft as the Next Big Thing in personal device security. But it offers absolutely no protection against the government, and can be compelled from suspects without raising any Fifth Amendment concerns. This was driven home with a vengeance over the weekend, when a May 2016 warrant application surfaced. The warrant in question seeks permission to:
[D]epress the fingerprints and thumbprints of every person who is located at the SUBJECT PRESMISES during the execution of the search and who is reasonably believed by law enforcement to be a user of a fingerprint sensor-enabled device that is located at the SUBJECT PREMISES and falls within the scope of the warrant. The government seeks this authority because those fingerprints, when authorized by the user of the device, can unlock the device.
The document was discovered by Forbes and constitutes a massive fishing expedition — a move admitted to in the warrant application itself, which states the government doesn’t know the identity of the devices or fingerprints it hopes to seize, but that evidence might exist at the target location. According to the Forbes investigation, this warrant was executed and the information in question was seized.
Here’s why the Fifth Amendment offers no protection for your fingerprints. The Fifth Amendment is generally viewed to provide security against something you know, but not something you are, or something you have. For example, you cannot suppress factual evidence about your weight, build, or physical description simply because those attributes might be used to tie you to the scene of a crime (and you cannot practically refuse to provide those measurements to an investigator). On the other hand, you can refuse to testify as to the contents of a locked safe or to provide the combination lock if doing so would constitute incriminating evidence against you.
But because fingerprints are simply something you have, like a key, they do not constitute protected information and can be gathered using methods like this. What’s more striking is that the warrant simply asserts information relevant to the investigation of a crime must exist on the smartphone in question, and that this gives the federal government the right to seize it.
“They want the ability to get a warrant on the assumption that they will learn more after they have a warrant.” Marina Medvin, of Medvin Law, told Forbes. “Essentially, they are seeking to have the ability to convince people to comply by providing their fingerprints to law enforcement under the color of law – because of the fact that they already have a warrant. They want to leverage this warrant to induce compliance by people they decide are suspects later on. This would be an unbelievably audacious abuse of power if it were permitted.”
Except it was permitted. And this, too, is a logical extension of the NSA‘s position on how its vast data collections don’t fall afoul of the Fourth Amendment. According to the government, the act of seizing information doesn’t count as a “search,” because the search doesn’t occur until the government actually accesses information that belongs to you. Under that standard, the government can essentially argue that you should be forced to unlock a device because it isn’t until the government searches your physical property that they actually might impair your rights.
But pay attention: The justification for the warrant is based on how the Department of Justice believed someone in the home could unlock the hardware, and that the information contained therein will have bearing on a criminal matter. The warrant is tautologically self-justifying. The government needs to search the device because it won’t know if it contains information pertinent to a criminal case until it searches the device. That’s exactly the sort of situation that’s not supposed to pass muster.
The idea that smartphones deserve special protection due to the overwhelming and comprehensive nature of the data stored on them has received some support from the Supreme Court. But the issue hasn’t been tested in a case like this.