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The Danger of Biometrics for Personal Use – Limited Legal Protection October 17, 2016

Posted by Chris Mark in Uncategorized.
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iStock_000006910296XSmall 2I have never been a proponent of using Biometrics and have frequently made jokes about  not wanting “the man” to have my finger prints.  Well, it looks like my position may have been well founded.

Recently, it was reported in Forbes.com that on May 29th, 2016 the US Government had filed a motion for the court to require residence in a Lancaster, California home to provide their fingerprints to open an iPhone.  More disturbingly, the motion called for: “authorization to depress the fingerprints and thumbprints of every person who is located at the SUBJECT PREMISES during the execution of the search and who is reasonably believed by law enforcement to be the user of a fingerprint sensor-enabled device that is located at the SUBJECT PREMISES and falls within the scope of the warrant.” In short, they didn’t just want the finger prints they wanted to force the residents to actually ‘use their finger’ to open the phone.  The warrant was not available to the public, nor were other documents related to the case.  Like many people, I asked “how can the courts do this?”  It would seem to me like an invasion of privacy (among other things).  Marina Medvin of Medvin law said: ““They want the ability to get a warrant on the assumption that they will learn more after they have a warrant. “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.”  Unfortunately, it was indeed permitted.

Is it legal?  According to the article in Forbes:

“In past interpretations of the Fifth Amendment, suspects have not been compelled to hand over their passcode as it could amount to self-incrimination, but the same protections have not been afforded for people’s body data even if the eventual effect is the same. Citing a Supreme Court decision in Schmerber v. California, a 1966 case in which the police took a suspect’s blood without his consent, the government said self-incrimination protections would not apply to the use of a person’s “body as evidence when it may be material.”

It also cited Holt v. United States, a 1910 case, and United States v. Dionisio, a 1973 case, though it did point to more recent cases, including Virginia v. Baust, where the defendant was compelled to provide his fingerprint to unlock a device (though Baust did provide his biometric data, it failed to open the iPhone; after 48 hours of not using Touch ID or a reboot Apple asks for the code to be re-entered.).

As for the Fourth, the feds said protections against unreasonable searches did not stand up when “the taking of fingerprints is supported by reasonable suspicion,” citing 1985′s Hayes v. Florida. Other cases, dated well before the advent of smartphones, were used to justify any brief detention that would arise from forcing someone to open their device with a fingerprint.”

We do know that the warrant was served.  It does appear that you cannot be forced to give up a passcode as it could amount to Self Incrimination under the 5th Amendment however you do not have the same protections for biometrics. This is another instance where the law has not kept pace with technology.  For this reason, and others I will not use biometrics for personal security.

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