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Fingerprint Scanners and the Fifth Amendment
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Clinically Insane
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Sep 15, 2013, 05:13 AM
 
You can plead the Fifth with a password, you can't with a fingerprint.

Just a heads-up from your friendly, local civil libertarian.



And by "friendly" I mean pot, hookers, and gambling.
     
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Sep 15, 2013, 08:59 AM
 
The 5th says you can't be compelled to testify against yourself, but you're right--this is a new gray area. The police can compel a breathalyzer or lock you up for refusal (or just convict you of the crime of refusing a breathalyzer, which is often revoking your license and huge fines). They can compel blood draw with a warrant (the Supreme Court stopped the warrantless draws early this year IIRC).

I don't care so much about that as long as the stop has merit, then the driver exhibits signs of intoxication, fails a breathalyzer, then the call for a warranted blood draw goes out. We clearly have to keep drunks off the road with a reasonable law enforcement process to do it.

Of the few federal courts that have handled password compulsion, I've read of more either staying the compulsion or denying it on 5th amendment grounds when the state doesn't have existing evidence that there is incriminating material already on the devices. Nothing very clear exists though and it should.

So would compelling a fingerprint be like a blood draw--warrant only--or protected by the 5th, like passwords sort of have (granted without a lot of precedence for a mainline interpretation)?
     
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Sep 15, 2013, 11:58 AM
 
Here's my view: If a judge has granted a warrant to search your phone or computer, and you refuse to comply, you are obstructing justice. The 4th amendment protects your "papers and effects," not the 5th.

Imagine the following circumstance: a big company is being investigated by police. A judge grants a warrant to search the company computers for incriminating bills, receipts, and so forth. And then the company president says: the entire company network is protected by passwords, which we're not handing over because of the 5th amendment. Justice across the nation grinds to a halt.

I'm more concerned with police accessing phones without a warrant, regardless of whether it is password protected. And I'm concerned that police are requesting and judges granting phone and computer access as a matter of routine, regardless of its possible relevance to the case at hand. I'm also very concerned with border agents demanding access to computers and phones without a warrant or any conceivable relevance to flight safety or border security.

As for Apple, here's hoping the iPhone 5s gives the option of requiring both fingerprint and password to access the phone.
     
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Sep 15, 2013, 12:03 PM
 
Originally Posted by Cold Warrior View Post
I don't care so much about that as long as the stop has merit...
Where I live, the cops occasionally set up road blocks and test everyone driving thru, usually on holidays. Do you have that where you live, and are you ok with that?

Myself, I'm totally ok with that.
     
subego  (op)
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Sep 15, 2013, 12:08 PM
 
They have them here, though I've never experienced one.

I'm not sure I like it, but there's no question they have the right to do it.
     
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Sep 15, 2013, 12:42 PM
 
We have "no refusal" weekends here. County judges are standing by to issue warrants for blood draws. It has helped; Texas seems to be rife with people who think they can drive their F150 after downing about 40 beers...in two hours. Here's the issue though: even if one is pulled over at random, it's not their drinking that's the point, but that they have chosen to potentially endanger everyone else on the road by driving, which makes it a public safety issue, and "everybody is for public safety."

As for a fingerprint scanner on a phone making your "papers" accessible without 5th Amendment protections, I don't see how even a warrant to "unlock the phone with your fingerprint" would be workable. You could easily claim "I didn't like that feature so I disabled it" and refuse to divulge your pass code on 5th Amendment grounds. "Contempt of Court?" Maybe, but I've seen that happen with simple 5th Amendment refusals too.

Glenn -----OTR/L, MOT, Tx
     
subego  (op)
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Sep 15, 2013, 02:59 PM
 
So you won't mind if we try it, then?
     
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Sep 15, 2013, 04:04 PM
 
you don't have to use that fingerprint unlock feature if you don't feel like it, right?

what's the fuss here?
     
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Sep 15, 2013, 06:17 PM
 
Originally Posted by Sealobo View Post
you don't have to use that fingerprint unlock feature if you don't feel like it, right?

what's the fuss here?
No, you don't. There's no fuss - just a conversation about what you should consider (at least if you're a US citizen) before deciding to secure data with only a fingerprint.
     
subego  (op)
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Sep 15, 2013, 10:59 PM
 
Originally Posted by Sealobo View Post
you don't have to use that fingerprint unlock feature if you don't feel like it, right?

what's the fuss here?
There is no fuss. There would be fuss if there were no way to protect yourself accordingly.
     
subego  (op)
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Sep 16, 2013, 01:18 AM
 
Originally Posted by lpkmckenna View Post
Imagine the following circumstance: a big company is being investigated by police. A judge grants a warrant to search the company computers for incriminating bills, receipts, and so forth. And then the company president says: the entire company network is protected by passwords, which we're not handing over because of the 5th amendment. Justice across the nation grinds to a halt.
My understanding is the 5th applies if the cops have no way of proving you had access to the data in question. Compelling someone in that situation to hand over the password is compelling them to incriminate themselves. If you can convince a judge the person would have access (say, they were employed to manage the computers in question), then the court can compel them to fork it over.
     
subego  (op)
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Sep 16, 2013, 02:13 AM
 
To put it another way, if the government needs your password to prove it's yours, providing it becomes self-incriminatory.
     
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Sep 16, 2013, 01:49 PM
 
The 5th applies to people, not corporations. The "corporate citizenship" stuff is dangerous nonsense. They can't take the fifth or vote. They shouldn't be able to lobby or donate to politics.
     
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Sep 16, 2013, 01:53 PM
 
Originally Posted by reader50 View Post
The 5th applies to people, not corporations. The "corporate citizenship" stuff is dangerous nonsense. They can't take the fifth or vote. They shouldn't be able to lobby or donate to politics.
But they have money! That's what really makes you a person.
     
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Sep 16, 2013, 04:47 PM
 
Originally Posted by reader50 View Post
The 5th applies to people, not corporations. The "corporate citizenship" stuff is dangerous nonsense. They can't take the fifth or vote. They shouldn't be able to lobby or donate to politics.
Alright, to make my scenario more concise, imagine it's not a corporation being sued, but the boss of a private firm being investigated for fraud. Is he obstructing justice by refusing to permit a search of his machines, or changing all the passwords with a script to lock everyone but himself out? I'd say he is.
     
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Sep 16, 2013, 04:52 PM
 
Originally Posted by subego View Post
My understanding is the 5th applies if the cops have no way of proving you had access to the data in question. Compelling someone in that situation to hand over the password is compelling them to incriminate themselves. If you can convince a judge the person would have access (say, they were employed to manage the computers in question), then the court can compel them to fork it over.
That's not quite the way I see it. I think it's much simpler.

If a judge says the police can search the premises, you unlock the doors. If a judges says the police can search the safe, you unlock the safe. If a judge says the police can search your computer, you unlock the computer. Fail to do any of those things, you're obstructing justice.
     
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Sep 16, 2013, 04:59 PM
 
Originally Posted by reader50 View Post
The 5th applies to people, not corporations. The "corporate citizenship" stuff is dangerous nonsense. They can't take the fifth or vote. They shouldn't be able to lobby or donate to politics.
Utilize your "speech" and donate $100 to a police officer to convince him that a $280 ticket is a bad idea.
"…I contend that we are both atheists. I just believe in one fewer god than
you do. When you understand why you dismiss all the other possible gods,
you will understand why I dismiss yours." - Stephen F. Roberts
     
subego  (op)
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Sep 16, 2013, 05:13 PM
 
Originally Posted by lpkmckenna View Post
Alright, to make my scenario more concise, imagine it's not a corporation being sued, but the boss of a private firm being investigated for fraud. Is he obstructing justice by refusing to permit a search of his machines, or changing all the passwords with a script to lock everyone but himself out? I'd say he is.
Again, the 5th Amendment protection comes up when the police don't have proof you had access to the device. Providing the password then becomes the proof. You can't force someone to give up what's in their head as proof against themselves.

If the police have proof you had access, a judge can grant a warrant and you must comply.

The most recent case I know of was a child porn case. The guy being accused was in IT, so the cops couldn't make a direct link to him from the encrypted drives. He got 5th Amendment protections. Later, the cops decrypted one of the drives on their own, and it had data they could link directly to the accused. This was enough for the judge to flip the decision. The password itself wasn't considered evidence of guilt anymore.
     
subego  (op)
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Sep 16, 2013, 05:15 PM
 
Originally Posted by lpkmckenna View Post
That's not quite the way I see it. I think it's much simpler.

If a judge says the police can search the premises, you unlock the doors. If a judges says the police can search the safe, you unlock the safe. If a judge says the police can search your computer, you unlock the computer. Fail to do any of those things, you're obstructing justice.
You're an IT guy. You have a shelf with 100 computers. How does that work?
     
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Sep 21, 2013, 06:45 PM
 
If you have concerns regarding using your fingerprints, just use your nipple:

Lock Your New iPhone with Nipples (Apparently!)

-t
     
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Sep 25, 2013, 01:19 PM
 
Originally Posted by subego View Post
You're an IT guy. You have a shelf with 100 computers. How does that work?
Not being an actual IT guy, I haven't a clue. But I'm sure said IT guy would be obligated to provide access to whatever the warrant says he must.
     
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Sep 25, 2013, 02:06 PM
 
Read the post before that.
     
   
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