The FBI won another court battle over phone encryption over the weekend when a California judge ordered identity theft subject Paytsar Bkhchadzhyan to use her fingerprint to unlock her iPhone.
Based on an FBI warrant, Bkhchadzhyan, the girlfriend of a suspected Armenian gang member, was forced to unlock her iPhone using the Touch ID feature, which lets users forgo entering a passcode by using a fingerprint instead, the Los Angeles Times reported.
The case is unique in that the government compelled a suspect to give up a biometric marker, such as fingerprints, iris scans, or hair samples, to open a digital device that may contain incriminating data. But while the decision raises privacy and Fifth Amendment concerns, the FBI said its court order is legally sound and based on multiple legal precedents.
The U.S. Supreme Court ruled in Riley v. California and the United States v. Wurie that law enforcement can compel suspects to hand over physical evidence, such as cell phones and fingerprints, upon arrest with a valid warrant, but can only access those devices without a court order under exigent circumstances.
The government has simultaneously pushed for looser regulation regarding digital devices and attempted to crack down on warrantless tracking and searches. The former effort was prominent in the FBI’s intense legal battle with Apple earlier this year regarding security protections on the iPhone belonging to one of the San Bernardino shooters. That debate came to a close when the FBI successfully hacked the phone without Apple’s help, but the case left lingering questions over how far the government can reach and force individuals or companies to comply with law enforcement investigations.
In Bkhchadzhyan’s case, the FBI forcing her to press her finger against her phone to unlock it may be akin to coerced testimony and could violate her Fifth Amendment rights, since she was compelled to make a statement she didn’t want to make.
Apple argued a similar violation when it protested a court order requesting the company create a digital tool that would give the FBI unlimited attempts to guess the passcode of the San Bernardino shooter’s iPhone without erasing the device’s data.
Forcing Bkhchadzhyan to unlock her phone with Touch ID was a form of authentication, that is, she was compelled to make a statement that she didn’t want to make.
But legal experts are torn on the matter. Albert Gidari, Stanford Law School’s director of privacy, told the LA Times that biomarkers aren’t thoughts and therefore law enforcement asking someone to give up their fingerprints after an arrest isn’t necessarily a constitutional violation.
“Unlike disclosing passcodes, you are not compelled to speak or say what’s ‘in your mind’ to law enforcement,” he said. “’Put your finger here’ is not testimonial or self-incriminating.”
Legal opinions aside, cases like Bkhchadzhyan’s highlight a growing concern over cybersecurity and the government’s ability to access private data among companies and the public. Tech companies have especially bucked against the Justice Department’s methods and requests for consumer data. And coupled with the Los Angeles court’s decision, the persistence of such high-profile cases is putting pressure on Congress to come up with solutions that balance law enforcement’s need to access digital data while protecting individual’s privacy rights.