Judge Rules Against Police Broadly Collecting of Fingerprints to Unlock Devices

Posted on March 17, 2017

In an opinion issued last week, a federal magistrate judge in Chicago ruled that police are not allowed to indiscriminately collect fingerprints from all residents or occupants of a certain property for the purposes of unlocking encrypted mobile devices. Though the case remains sealed, the published ruling indicates that the case involved law enforcement attempting to collect fingerprints from everyone in a particular building with the aim of possibly unlocking an unspecified and, as far as the judge could determine, hypothetical Apple device.

The magistrate judge, Judge M. David Weisman, asserts in his opinion that, because the search warrant neither named a specific suspected individual nor demonstrated that law enforcement officials possessed an actual, particular device against which to test the collected fingerprints, the warrant failed to meet the Fourth Amendment’s probable cause requirements. As the case remains sealed, it is not clear what investigative purpose, if any, this wholesale fingerprint collection effort served. 

The case also raises questions regarding the protection of fingerprint and other biometric data under the Fifth Amendment, which shields citizens from testimonial self-incrimination. At present, police and other law enforcement are allowed to collect fingerprint data on detained persons and criminal suspects, but one of the arguments against law enforcement’s action in the case in question alleged that broad fingerprinting of every occupant in a building could constitute self-incrimination in violation of the Fifth Amendment. Several legal experts interviewed in a write-up of the case for Ars Technica contended that the Fifth Amendment protects citizens from being compelled to verbally–in other words, testimonially–express guilt but that, in all cases, fingerprints are not considered testimonial. More simply, the Fifth Amendment protects what people say, not what they are, in this case biologically.

You can find the full article from Ars Technica here