Do you lock your phone with your fingerprint for privacy? Is your fingerprint on file? Here’s why the government wants fingerprints for unlocking phones.
In the wake of the San Bernadino shooting, a complex issue was put under the microscope. A battle between Apple and the FBI over unlocking the contents of an iPhone.
Around that time, a string of events raised questions about smartphone security. All these events had one thing in common.
A fingerprint.
Now, the public is fighting a battle of a different kind. A philosophical battle over what it means to self-incriminate. The question at the core of it is this.
Can the government require you to produce a fingerprint to unlock a phone?
The 5th Amendment states no one “shall be compelled in any criminal case to be a witness against himself”. But if you are forced to unlock a phone using biometric data, it could result in evidence against you.
Is that self-incriminating?
Biometric data, like fingerprints, falls under a class all its own. It is considered “real or physical evidence”. And, unlike DNA swabs, fingerprints do not require a search warrant.
That’s the “too long, didn’t read” version of the issue. But if you are a smartphone user, and I’m guessing you are, this impacts you.
It’s time to get smart about the issue of personal cyber security for smartphones. Here’s what you need to know.
This Warrants a Warrant
Let’s be clear. Searching someone’s phone requires a warrant. The Feds won’t require you to unlock a phone unless they have reason to believe there’s something on it.
Not only do they have reason to believe you have information on your phone. But they’ve brought it to a Judge who agrees.
That said, unlike the verbal exchange of info, fingerprints do not need a warrant. They are considered a kind of evidence that is freely accessible.
Play out this fictional scenario to see why this is important.
The FBI believes you own a storage unit that may have information about a criminal case. The only way to open it is a key that you have.
The government produces a warrant to search the hanger.
You do not wish to provide the key. The FBI removes the key from your home with no proper warrant to search your house for it. Without your consent to do so.
And it’s totally legal.
The above is a fictional scenario. But that’s what forcing a biometric unlock is like.
Is it constitutional? In some cases, the information seized is incriminating to the phone’s owner.
Susan Brenner, Professor of Law, wants to close loopholes that make unlocking easy. Requiring warrants for fingerprints that unlock tech would be one way to do that.
Pointing the Finger at Yourself
Then there’s the question of the 5th Amendment. The one that protects us from self-incrimination.
When it comes to the verbal exchange of information in a courtroom, a person has the right to “plead the 5th”.
But some say being forced to unlock a phone is unjust. It’s akin to opening up a filing cabinet in your home and handing over important documents. It’s incriminating!
This is a source of debate. Is authenticating a phone with biometrics really an admission of guilt?
Some believe unlocking with biometrics is certifying you own the phone’s contents. In that sense, it can be self-incrimination. But others disagree about the issues surrounding unlocking.
In opposition is Albert Gidari. He’s the Director of Privacy at Stanford Law School’s Center for Internet and Society. He contends that “Put your finger here” is not the same as testimony.
Depressing Facts About Depressing
The police used a warrant to search the California house of a family. They had no previous criminal history.
That warrant contained language about the use of fingerprints. It read that anyone in the house could be required to depress their finger as a biometric key on any device in the home.
The memorandum requesting the warrant went even further. It stated any potential suspect in the case could fall under conditions of the warrant. Even if they were not part of the initial search being conducted at the time of the warrant.
This left many critics scratching their heads.
Their concern: The unprecedented reach of the search. And the potential for abuse of police power that it offered.
The memorandum, picked up by media, determined that collecting fingerprints is not unconstitutional. They cited the case of Schermber v. California.
That case made a determination about using the forced extraction of blood samples. Intrusions of the human body are not a violation of the 4th Amendment or 5th Amendment.
Unlocking the Solution
At the core of the issue are 200-year-old documents that have stood the test of time. They remind us that everyone deserves a chance for “life, liberty and the pursuit of happiness”.
It’s an American culture of freedom. One that stands in staunch comparison to oppression. And the super-powers that seek to control people.
It’s a source of American pride.
Critics believe rights are at stake when we compromise on personal security. Issues of this nature are not new to skeptics.
Similar sentiments have been long held about the Patriot Act of 2001. An act that continues to be in place today. Making a lasting impact through changes in administration and political doctrine.
Proponents of these laws suggest people are giving up security for the greater good.
After all, the government uses the information to prevent loss of American life. That’s a good thing. Saving lives is the goal of National Security.
But at what cost? At what point did we agree to trade the promise of lives saved for our own life, liberty, and happiness? At what point do we ask for transparency with the process?
These questions aren’t likely to be answered soon.
In fact, as the reach of technology grows, so will the ways that it can be used by individuals, groups, and government. You may have already noticed some backlash.
Groups like Wikileaks and Anonymous are the direct result of a desire for transparency. They are a reminder of how no information is safe.
The only thing we know for certain is the government wants your fingerprint to unlock your phone. And if that gives you pause, stick to an enumerated passcode.