The FBI Can Use Dead Suspects’ Fingerprints to Open iPhones

In this ever-increasing digital age, personal privacy and rights continue to controversial topic. In the midst of San Bernardino shooter Syed Farook’s investigation, the District Court of California, at the formal request of the FBI, issued an All Writs Act 1789 order on Apple asking them to code a special iOS to be installed on Farook’s iPhone. The code would allow the FBI to make unlimited guesses at Farook’s password. As Apple makes their iPhones increasingly secure, the FBI is having trouble hacking into iOS data, which is costly and time-consuming.

As a result, the government has tried to co-opt Apple and used the Writ Act to force Apple to collaborate with them. Apple has currently appealed its case, with its CEO Tim Cook issuing a statement that such a code would threaten the security of iPhone owners, and pledging to uphold people’s privacy. In the interim, they have figured out that Apple’s TouchID can be bypassed with people’s fingerprints and/or copies of their fingerprints.

If Apple loses its appeal, those concerned about their security should disable their TouchID and opt for a strong password.

Fifth Amendment Rights

The Fifth Amendment of the U.S. Constitution is home to a slew of rights. Amongst the most well-known would be its protections against double jeopardy, guarantee of a grand jury, and its protection against self-incrimination. As to the latter, the constitution simply states “[No person]…shall be compelled in any criminal case to be a witness against himself…” This means a person who is accused of a crime cannot be forced to say or do something that incriminates him or her.

Passwords and Fingerprints

Fingerprint evidence, on both living and dead people, is physical evidence that can be compelled with a court order, unlike a password. A judge in Virginia recently ruled that a suspect may be forced to unlock his or her phone with its fingerprint scanner. See Commonwealth of Virginia v. Baust, No. CR14-1439, at 1 (Va. 2d Cir. Ct. Oct. 28, 2014).

Forcing someone to admit their password to an electronic device that holds self-incriminating evidence, however, is considered self-incriminating testimonial in violation of the fifth amendment. This contrasts with a fingerprint, which is not considered ‘testimony.’ However, the FBI has a lesser chance of a legal challenge in trying to lift fingerprints off the deceased.

It is recommended that if you are concerned about your phone security, to only utilize your password and invoke your fifth amendment rights if police question you.

San Diego Constitutional Rights and Criminal Defense Lawyer

The Law Offices of David M. Boertje is a staunch defender of the fifth amendment and your constitutional rights as a suspect. We handle all misdemeanor and felony criminal cases and will walk you through your case from arrest to trial. We will make sure no one tries to force you to incriminate yourself. If you have been arrested or charged with a crime, contact attorney David Boertje today. Consultations are free and confidential.