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< | Forced Fingerprinting by a Search Warrant
Analysis of the Feb 16, 2017 Order by the Illinois District Court
I. Introduction | >
> | Conceptualizing the National Security Exception in a New Media World | | | | |
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< | Touch ID is a fingerprint authentications installed in the products of Apple Inc. (“Apple”), among which are iPhone 5S and the more recent versions of iPhones. In this system, the user’s fingerprint is used to unlock the devices. Apple states that this fingerprint data is stored locally, not in cloud,*1 which makes forensic investigators very difficult to access externally. Further, the entry of a passcode is required “when more than 48 hours have elapsed from the last time you unlocked your device,”*2 which makes it more complicated for criminal investigation since passcode breaking is much more challenging.
Thus, acquiring fingerprint data has become crucial for the law enforcement when an Apple device is involved in a crime which is locked by Touch ID.
Fingerprint data can be obtained through other government databases such as those of immigration registration. Investigators can also use fingerprints from a dead person because it is said that this does not give rise to the privacy issues or the self-incrimination issues.
When these sources are not available, the investigators have sought search warrants that allow them to enforce persons at the subject premise to depress their fingerprints. It has been conducted since around 2014 , and has become routine especially in California.
However, on Feb. 16, 2017, the US District Court for the Northern District of Illinois Eastern Division blocked the issuance of a search warrant allowing the law enforcement agency to compel individuals to provide fingerprints. | >
> | Almost fifty years have passed since the Supreme Court decided New York Times Co. v. the United States, affirming the First Amendment right of the press to publish confidential documents about the United States’ involvement in the Vietnam War. That decision articulated a strict burden for government to meet if it wishes to restrain publication: prior restraints are impermissible absent proof that publication will surely result in direct, immediate and irreparable damage to our nation. The dearth of government challenges to enjoin publications in the last fifty years, and the inability of government witnesses to cite examples of harm sustained by the nation as a result of publication, suggest that the Court’s decision to create a heavy presumption against prior restraints was appropriate. | | | | |
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II. Analysis of the Case
In the case, the government asked the court to issue a warrant “to compel any person who happens to be at the subject premises at the time of the search to give his fingerprint to unlock an unspecified Apple electronic device”.
The court discussed two issues: those on the Fourth and Fifth Amendments. In summary, it stated that there needs to be more specific facts to establish sufficient probable cause under the Fourth Amendment as to “who is involved in the criminal conduct linked to the subject premises” or as to “what particular Apple-branded encrypted device is being employed” Moreover, the court concluded that considering the nature of Apple electronic devices which “potentially contains some of the most intimate details of an individual’s life” and the situation in this case where the law enforcement had no showing that “the location, existence, and authenticity of the purported evidence is known with reasonable particularity,” seeking the forced printing to hand over the information in devices is regarded as compelled self-incrimination forbidden under the Fifth Amendment.
Nonetheless, the court mentioned that the Fourth Amendment does not protect privacy interests of a fingerprint itself. What it was concerned was how the print is collected.
Additionally, regarding the Fifth Amendment, although the court said that if “the location, existence, and authenticity of the purported evidence is known with reasonable particularity” and “the contents of the individual’s mind are not used against him” (so-called “foregone conclusion”)—with this logic, it seems that compelling the depression of fingerprints will always be regarded as forced self-incrimination since the contents of a device is unknown to the agency until it is unlocked--, the court concluded that the warrant can be issued if sufficient evidence and information are submitted.
In overall, even though it refused to order a warrant under the circumstances herein, it has not closed the door to all search warrants that compel an individual to forced fingerprinting.
III. Thoughts and Conclusion
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> | The Court’s balancing reflects a fundamental tension that pervades American jurisprudence: the government’s interest in maintaining secrecy to protect the nation juxtaposed against the duty of the press to inform the public and hold government accountable. That tension is only exacerbated by the Internet’s transformation of journalism and the media. Consumer habits are changing; many consumers no longer read multiple articles from a single source or newspaper. New forms of online journalism have proven able to out-innovate newspapers. Moreover, some of these new forms of media, like WikiLeaks? for example, are less inclined to self-restraint. WikiLeaks? is a global internet-based organization that publishes anonymous submissions of confidential corporate and government documents. WikiLeaks? believes that document leaks are vital to improve transparency of government and corporations because it subjects them to greater scrutiny that will ultimately reduce corruption. Since its inception in 2007, WikiLeaks? has published many controversial documents, including the Afghan War Reports. Reports of retaliation against cooperating informants by the Taliban subsequent to the release of the Afgan War Diaries lend credence to government assertions that WikiLeaks? ' actions have actually endangered national security. | | | | |
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< | Hence, under this decision, the government can obtain fingerprint data by a search warrant with a sufficient evidential cause against persons found at the subject premises at the time of searching. | >
> | The supranational nature of media today enables offshore Internet publishers to withstand legal attacks. In addition, advances in technology and the ease of distribution raise the stakes of publication because, unlike a traditional newspaper article, a nontraditional online publication can spread around the world instantly, which increases the potential threat to national security. Nontraditional publishers do not exercise discretion in avoiding publications that might threaten in the same manner as traditional publishers, nor do they pay the same cost of entry. | | | | |
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< | However, what if anyone but an Apple device was found on the search site? Can an investigator ask the court to issue a warrant that compels the owner to depress his fingerprints after its seizure? From the logic of the decision above, one should think that a government cannot go as far as to compel a person to give his fingerprint after the seizure. The court implies that the detention in order to get the fingerprint at the search site is allowed because it represents “only an incremental intrusion on personal liberty when the search…has been authorized by a valid warrant.” And summoning a person to get his fingerprint is surely not an incremental intrusion. Then, the law enforcement might have to use the All Writs Act (“AWA”) just as the FBI did against Apple to unlock passcode-locked iPhone in San Bernardino case in 2016. Yet, the court opinion here is not clear on this issue. It states, “after the execution of this warrant, the government may garner additional evidence…[and] can promptly apply for additional search warrants” and seems to assume that it can issue a search warrant after the seizure of a device. | >
> | Some argue that the nature of new media calls for an increased effort by government to restrain publications. Because nontraditional publishers are not as reliable, careful, or as controllable as traditional publishers, and since information has the potential to travel further and more quickly, the traditional understanding of the First Amendment should not apply and government should use the full extent of its power to prosecute nontraditional publishers for dangerous publications. But the power of publishers like WikiLeaks? to threaten legitimate secrecy pales in comparison to the government's ability to enforce secrecy through technology, control over employment, prosecutions, and the well-established processes of classified communication. Moreover, the increasing power of government to monitor patterns of behavior poses a risk to anonymity that traditionally undergirds effective newsgathering. Nontraditional publishers are more vulnerable than traditional publishers in part because their reputations are not established. Therefore, nontraditional publishers need to have just as much if not more protections as traditional publishers. | | | | |
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< | If a warrant should be issued under the AWA, the threshold will be higher than the issuance of a search warrant. It requires “the absence of alternative remedies” and the consideration of such factors as “the closeness of the subject’s relationship to the criminal conduct and investigation,” “the burden the requested order would impose on the subject,” and “the necessity of imposing such a burden on the subject.” | >
> | Instead of responding to the evolution of media by restricting the ability of the press to monitor government, government might respond by dedicating resources to improve infrastructure so that the unauthorized attainment of classified information is less likely. Efforts to improve our military infrastructure so that it can react more quickly to sensitive publications will sufficiently safeguard national interests without curtailing nontraditional forms of media. Professor Geoffrey Stone points out that, notwithstanding the attendant risk, discussion about issues of national importance, especially during wartime, can help save the nation from tragic blunders. Despite the risks that nontraditional publishers pose to national security, they exist to illuminate the dark that surrounds so much of government activity. The curtailment of these publications will necessarily cause unexpressed feelings of dissidence to fester and government corruption to thrive. Protection for publications about government should be absolute, and even if the freedom in the constitution is absolute, one must worry about what currency an absolute constitutional power carries in a world where peoples’ identities and the publications are digitalized and anonymity is much less absolute. | | | | |
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< | In any case, requiring an additional warrant for fingerprinting might make the investigator impossible to unlock the Apple device since Touch ID only works for 48 hours. | >
> | Sources: | | | | |
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< | As the court in Brooklyn case mentioned, the AWA is a general provision with a role of “gap filler” when “lack of laws” exists. It might be more appropriate to enact a law on forced fingerprinting in order to avoid ad hoc court decisions and to reflect public opinions on privacy interests in fingerprint itself which the Fourth Amendment does not protect and on the effectiveness of the investigations.
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> | 1. Floyd Abrams, The Pentagon Papers After Four Decades, 1 Wake Forest JL & Pol'y 7 [2011].
2. Alexander E. Blanchard, A False Choice: Prior Restraint and Subsequent Punishment in A Wikileaks World, 24 U Fla JL & Pub Pol'y 5, 6 [2013].
3. Kyle Lewis, Wikifreak-Out: The Legality of Prior Restraints on Wikileaks' Publication of Government Documents, 38 Wash UJL & Pol'y 417, 425 [2012].
4. Nawi Ukabiala, Wikilaw: Securing the Leaks in the Application of First Amendment Jurisprudence to Wikileaks, 7 Fed Cts L Rev 209, 237 [2013].
5. David McCraw? , Stephen Gikow, The End to an Unspoken Bargain? National Security and Leaks in A Post-Pentagon Papers World, 48 Harv CR-CLL Rev 473, 488 [2013].
6. Doug Meier, Changing with the Times: How the Government Must Adapt to Prevent the Publication of Its Secrets, 28 Rev Litig 203, 213 [2008]. | | | END
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