www.bloomberg.com
By Kartikay Mehrotra
The FBI’s feud with Apple over access to Syed Farook’s iPhone might
never have happened if the San Bernardino, Calif., shooter had been
carrying a 5S or newer. For the 250 million phones sold around the world
with fingerprint authentication since 2013, law enforcement may be able
to compel suspects to press their fingers to the devices and unlock
them.
With minimal litigation on the books in the U.S., police and prosecutors
require only a judge’s blessing on a warrant for a suspect’s
fingerprints. So far they’ve used the power sparingly. But as the number
of fingerprint scanners in hip pockets grows, district attorneys across
the country say the technology is poised to become a major engine of
evidence-gathering. “It is likely to be just a matter of time till this
does become a primary gateway to accessing phones,” says Micheal
O’Connor, an Alameda County assistant district attorney in Oakland,
Calif.
If a person has enabled Apple’s Touch ID, her fingerprint will unlock
the phone for 48 hours after locking before the device requires a PIN.
Systems on newish Samsung and LG phones work similarly. Los Angeles and
Oakland are among the cities that have already granted or received
warrants for the use of a finger to unlock a phone. The next step may be
a lawsuit that determines whether a fingerprint is off-limits.
Legal scholars say law enforcement is likely to win that fight. Two
years ago, David Baust, a paramedic in Virginia Beach, Va., admitted
that his locked iPhone 5S may have filmed him in bed strangling his
girlfriend, according to a court filing. Baust’s lawyers argued that
unlocking the phone would violate his Fifth Amendment right to avoid
incriminating himself. A state judge ruled that demanding Baust type in
his pass code would entail a “mental process” leading to
self-incrimination, but that asking for his fingerprint was more like
drawing a blood sample and therefore OK.
Although the Virginia decision isn’t binding on other judges, it’s only a
matter of time before a higher court weighs in and sets a precedent,
says Rahul Gupta, a senior deputy district attorney in Orange County,
Calif. He, too, is betting on police and prosecutors. “It’s just the
same old evidence, blood or a mouth swab, being used in a different
way,” he says.
Fingerprint-scanning phones will become the majority within about two
years, estimates researcher IDC. As the pile of warrant requests grows,
the pressure will be on magistrate judges to draw a line between genuine
seizures and fishing expeditions, says Leslie Harris, a lecturer at the
University of California at Berkeley’s School of Information. “They
could be the last line of defense,” says Harris, who’s also president of
the Harris Strategy Group, a think tank that advocates for privacy
rights. “And they often get calls in the dead of night that force them
to make immediate decisions. It’s not an ideal situation.”
The fingerprint lock systems, as they stand, though, aren’t foolproof
skeleton keys for law enforcement. When the phone is switched off and
restarted, it requires a pass code. And it won’t take long for criminals
to learn that the little scanner on the home button isn’t their friend.
The bottom line: Fingerprint locks, which will be the norm in two years, give law enforcement an end run around smartphone encryption.
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