Another episode in the saga of police investigations and smartphone technology. The government has been allowed to force suspects to unlock an iPhone with their fingerprint if they're sufficient evidence. However, a federal judge in Illinois has drawn a line in the sand. The government was investigating an Internet connection being used to traffic and child pornography and wanted a warrant to compel the people at the location to unlock any
Apple devices with their fingerprints. Judge David Wiseman refused to issue the warrant, citing concerns about potential violations of the Fourth and Fifth Amendment. Our guest is Robert Mintz. He's the head of the White Collar and Government Investigations Group at McCarter and English and a former federal prosecutor. Bob under what circumstances is it clear that the government can get a warrant to force someone to unlock an iPhone
with their fingerprint. Well, as you mentioned, that issue has come before the courts before, and the courts have held where there is a very specified need for that information and the and the government has made out clear probable cause um connecting the individual with the information that may
be on their cell phone. Prosecutors can in some instances force an individual to unlock a cell phone, but in this case, as you mentioned, the court found that there was insufficient evidence based on the warrant that was presented to the magistrate judge to require individuals who just happened to be on the premises to use their thumbs to unlock their cell phones, and the court relied both on Fourth Amendment and on System Amendment grounds in denying that request.
You know, Bob, it seems a little strange on some level to be talking about the Fourth Amendment rights of people when we don't even know if they're going to be there and their Fifth a moment rights, we don't know who's going to be there. Is Is it normal in a warrant application for the government to ask about the methods by which they're going to search people they might find at the at the location. Well, that is unusual, Michael.
I mean, usually what a warrant does is get establishes probable cause that a crime has been committed and that evidence of that crime is located at a particular premises. So, in other words, it is based entirely on the premises and not on a person in this case, this warrant application and the judge's opinion got into issues of acts of production and conduct by individuals who, as you mentioned, may or may not even be at the premises at the time that the search is executed. Bob, What was
the government's argument and the judge's response. Well, the government argued first that there was no real Fourth Amendment concern here because they had a right to detain individuals who were present at the time of the or and therefore
that that element of the search was reasonable. And the more interesting aspect of it was whether or not, once somebody was detained, assuming that was reasonable, whether they could be forced to use their sumb to unlock their own phone, and whether or not that act would violate their Fifth Amendment right against compelled self incrimination and not got into a whole discussion about whether this simple act of placing your thumb on your iPhone or on your iPad was
an act of testimony or was it merely a physical act. Because there's a long line of cases that clearly established that people have no Sis Amendment right to um giving handwriting exemplars. For example, you can be compelled to give a blood sample, you can be compelled to stand up in a lineup, and of course you can be compelled to give your fingerprints. That that that precedent goes back to at least nineteen sixty seven, if not before that.
But here the court is saying that it's not simply providing a fingerprint that can place you at the scene of a crime. But by giving your fingerprint and unlocking your cell phone, you are in essence testifying because you're
letting law enforcement know that you access that phone. Before that, you set up the phone so it would access only your fingerprint, and it essentially ties you to the information on the cell phone in a way that's simply providing your fingerprint does not well, But would it be any different, Bob, if say the police found a person standing next to a cell phone at the location and then said please put all ten of your fingers on and they'll see if any of them opens it up, and the person
doesn't tell them anything about it, Well, it's it's that that that is a similar case. And and the judge actually talked about the difference between um asking somebody to put their fingerprint on ten different phones and tie them to the to an individual phone versus tying them to one phone they happen to have on their on their presence. I think what we're seeing here that makes this case unique and and has been brought up in other cases, is that courts are troubled by the vast amount of
information that is contained on cell phones these days. And there was a Supreme Court case just a few years ago, um the Riley case, which talked about the fact that this is not simply a cell phone, but they referred
to it as a mini computer. And the magistrate judge in this case cited that case to say that there's a higher Fourth Amendment standards here because you're not simply accessing a phone to find out what calls somebody made or what calls somebody may have received, but you're accessing essentially their whole life, their medical records, their contacts. You can find out locations and where somebody has been, where somebody may have purchased um uh things, and and and
tie their location, their associations. It really opens up their
entire life. And so courts have now used a higher andered a higher Fourth Amendment standard untoldntole prosecutors that you have to really have specific evidence that ties the individual to a crime and shows that there's a connection between the individual and the information on that cell phone before a judge is going to allow you sort of a blanket provision as the prosecutors were looking for in this case, to say that everybody who might be present has to
put their finger on their phone and give up that type of personal and private information. Thank you. That's Bob Mints of Macarter and English and a former federal prosecutor coming up on Bloomberg law. A thirteen year old Michigan girl with cerebral palsy and her service dog Wonder when a case for disabled students at the Supreme Court. This is Bloomberg