You Still Have an Expectation of Privacy?

FORBES found a court filing, dated May 9 2016, in which the Department of Justice sought to search a Lancaster, California, property. But there was a more remarkable aspect of the search, as pointed out in the memorandum.

[...]

According to the memorandum, signed off by U.S. attorney for the Central District of California Eileen Decker, the government asked for [authorization to force people with fingerprint-secured phones to open them. And to seize] ‘passwords, encryption keys, and other access devices that may be necessary to access the device.’

Legal experts were shocked at the government’s request. “They want the ability to get a warrant on the assumption that they will learn more after they have a warrant,” said Marina Medvin of Medvin Law. “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.”

Jennifer Lynch, senior staff attorney at the Electronic Frontier Foundation (EFF), added: “It’s not enough for a government to just say we have a warrant to search this house and therefore this person should unlock their phone. The government needs to say specifically what information they expect to find on the phone, how that relates to criminal activity and I would argue they need to set up a way to access only the information that is relevant to the investigation.

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Whilst the DoJ declined to comment, FORBES was able to contact a resident at the property in question, but they refused to provide details on the investigation. They did, however, indicate the warrant was served. “They should have never come to my house,” the person said. (In an attempt to protect the residents’ privacy, FORBES has chosen to censor the address from the memorandum posted below and concealed their name. But the document is public – search hard enough and you’ll find it). “I did not know about it till it was served… my family and I are trying to let this pass over because it was embarrassing to us and should’ve never happened.” They said neither they nor any relatives living at the address had ever been accused of being part of any crime, but declined to offer more information..

  Forbes

They were probably scared shitless. And not inclined to piss off the DOJ by talking about it.

The memorandum – which specifically named Apple, Samsung, Motorola and HTC as manufacturers of fingerprint-based authentication – outlined the government’s argument that taking citizens’ fingerprint or thumbprint without permission violated neither the Fifth nor Fourth Amendment. In past interpretations of the Fifth Amendment, suspects have not been compelled to hand over their passcode as it could amount to self-incrimination.

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The justifications didn’t wash with Medvin or Lynch. Of the Fourth Amendment argument, Medvin said the police don’t have the right to search a person or a place in hopes of justifying the search later as reasonable. “That’s not how the 4th Amendment works,” Medvin added. “You need to have a reasonable basis before you begin the search – that reasonable basis is what allows you to search in the first place.”

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"The part the government is ignoring here is the vast amount of data that’s on the phone,” Lynch added

Ignoring it, or is that the point?

And while we're on the subject of fingerprints and phones...

When Dr. Anil Jain was approached by the Michigan State University Police Department to unlock a murder victim’s Samsung Galaxy S6 using a fingerprint clone, he didn’t think the solution would be so cheap. But he told FORBES that the equipment needed to produce the high-definition print cost under $500. What’s more, he said, the same technique, at the very least, can unlock the Samsung Galaxy S7 and the iPhone 6.

  Forbes

...but hey, do what you want...you will anyway.