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In this week's edition of The Wire IRL, where I look at surveillance and criminal cases you probably haven't heard about elsewhere, I've been researching how the U.S. government is continuing to get into people's smartphones, tablets and laptops via their biometric logins, while giving people false hope that they might be able to opt out.
According to search warrants reviewed by Forbes, the FBI has some new language in its warrants allowing it to force people to unlock their devices with their face, their finger, their iris or whatever other part of their body opens up their tech. It appears that the government is trying to show how it can limit such searches so as not to risk infringing the privacy of people who happen to be at a property at the time of a search, and avoiding any reprimand by the judges they want to approve the warrant. But at the same time, they're simply reinforcing their legal right to access suspects' devices without their permission, taking advantage of Apple's Face ID, Google's Android alternative and other such biometric technologies. Over in Tacoma, Washington, a search warrant on the residence of a man suspected of possessing and sharing child exploitation material allowed law enforcement personnel “to compel the subject person to provide biometric features, including pressing fingers (including thumbs) against and/or putting a face before the sensor, or any other security feature requiring biometric recognition.” That was for any device that was deemed to be his, not for anyone else's.
But it went further, saying that law enforcement could not compel the person to say which body part would open the device. “This warrant does not authorize law enforcement personnel to request that the subject person state or otherwise provide the password or any other means that may be used to unlock or access the devices, including by identifying the specific biometric characteristics (including the unique finger(s) or other physical features) that may be used to unlock or access the devices.”
Why this new language? Judges in some states have slapped down warrants where any person in a searched residence could be told to open their device with a biometric feature. Legal experts have also previously noted a dissonance in American law around such searches: on one side, police are not allowed to demand someone to provide their passcode because that would be deemed “testimonial” and go against Fifth Amendment protections from self-incrimination. At the same time, though it has the same effect of opening up someone’s private digital life, they’re often permitted to hold up a phone to someone’s face and unlock it that way.
The federal government has now tried to navigate that issue by writing in warrants that the subject of the search can refuse to provide information on what kind of login they use. That should prevent any issues that arise should someone decide, after the search, they didn’t know they were able to keep schtum on what they use to access their phone data.
The language is being replicated, albeit with slight alterations, beyond Washington. On the other side of the country, in West Virginia, a broader warrant can be found, filed by the Department of Homeland Security’s criminal investigation unit, allowing police to not just search the phones of the two named suspects in another child exploitation material investigation, but those of anyone inside a house in Kanawha County. While allowing investigators to force fingerprints down or hold up a device to someone’s face to get that crucial unlock, the warrant says law enforcement could not “request that any individual state or otherwise provide the password or any other means that may be used to unlock or access the devices.”
In both cases, the eventual impact will be much the same: with such warrants in hand, police can take a phone and have it unlocked on site with ease, regardless of whether or not the suspect wants to share how they use their body to access their technology.
A version of this story will appear in Forbes later this week. You can find the relevant search warrant from West Virginia here, but I'm not publishing the Washington document as the named suspect has not yet been charged. (In West Virginia, the suspect has been charged, but not yet filed a plea. His counsel hadn't responded to a request for comment at the time of publication.)
If you have any tips on government surveillance or cybercrime, drop me an email on tbrewster@forbes.com or message me on Signal at +447782376697.
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