The legal debate over whether police can compel criminal suspects to unlock their smartphones with biometrics has reached its highest profile yet, with the news that FBI investigators sought permission to use Michael Cohen’s fingerprints or face to unlock his iPhone.
Cohen has been near the center of the ongoing investigation into possible campaign violations and foreign ties of the Trump campaign; as such, any information he might have stored on his personal devices would have been of significant interest to investigators. So the FBI filed a request with a Southern District of New York asking for permission to “to press the fingers (including thumbs) of Cohen to the Touch ID sensors of the Subject Devices, or hold the Subject Devices in front of Cohen’s face, for the purpose of attempting to unlock the Subject Devices via Touch ID or Face ID in order to search the contents as authorized by this warrant.”
As CNBC reports, a judge authorized investigators to seize electronic devices from Cohen’s home and office, and “[a]ny items or records needed to access the data stored on any seized or copied computer devices or storage media.” But it isn’t clear that this offers permission to use Cohen’s own biometrics to unlock the devices, and there is no indication that investigators did so.
In any case, the application marks the latest escalation in a sometimes philosophical debate about whether the Fifth Amendment protection against self-incrimination extends to forcing suspects to biometrically unlock their devices. There is a general consensus that suspects can’t be compelled to reveal their passcodes for phone unlocking, but some argued that because biometrics are not knowledge but rather physical traits, they don’t fall under the protection of the Fifth Amendment. A California judge recently disagreed, asserting essentially that the matter revolves around the principle that police can’t force a suspect to unlock their phone, whatever the means; but there remains significant disagreement over the matter across the country, with judges in different districts free to adhere to different interpretations of the law.
March 21, 2019 – by Alex Perala