Warrant Request for Biometric Data of All Present Too Broad

(February 3, 2019) Forcing all persons present when a search warrant is executed to unlock their electronic devices using their biometric features violates the Fourth and Fifth Amendments, a U.S. District Court in California found.

The governmental agency seeking the warrant was not revealed in the order. The search warrant application was for a residence in Oakland, California and concerned an alleged extortion using Facebook Messenger, in which the messages threatened to distribute an embarrassing video of the victim.

The court said the warrant application was overbroad and violated the Fourth Amendment. The application did not “establish sufficient probable cause to compel any person who happens to be at the Subject Premises at the time of the search to provide a finger, thumb or other biometric feature to potentially unlock any unspecified digital devise that may be seized during the otherwise lawful search.”

The court also found the request violated the Fifth Amendment privilege providing that no person “shall be compelled in any criminal case to be a witness against himself.”

The court admitted that “technology is outpacing the law.” Technology has provided persons with shortcuts to entering passcodes by utilizing biometric features. If the Fifth Amendment prohibits compelling testimonial self-incrimination, then because biometric features are akin to testimony, “a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device.”

Moreover, the court found, “a successful finger or thumb scan confirms ownership or control of the device, and, unlike fingerprints, the authentication of its contents cannot be reasonably refuted.”

Finally, the court wrote that while it “sympathizes with the Government’s interest in accessing the contents of any electronic devices it might lawfully seize, there are other ways that the Government might access the content that do not trample on the Fifth Amendment.”

In the Matter of the Search of a Residence in Oakland, California, N.D. Calif. No. 4-19-70053, filed January 10, 2019.