Hello again, everyone! This week, I want to revolve my discussion around the article “Feds Can’t Force You To Unlock Your iPhone With Finger Or Face, Judge Rules” by Thomas Brewster.
I picked this article because, ever since personal devices became a consistent part of day to day life, I’ve been curious about where law enforcement draws the line between what constitutes a violation of privacy and taking necessary means to retrieve evidence.
Something that stuck out to me in the article was the explanation of how, before the judge’s ruling, “…courts had decided biometric features, unlike passcodes, were not “testimonial.” That was because a suspect would have to willingly and verbally give up a passcode, which is not the case with biometrics. A password was therefore deemed testimony, but body parts were not, and so not granted Fifth Amendment protections against self-incrimination” (Brewster, p.1). Basically, the “right to remain silent” didn’t extend to parts of an individual’s body because body parts were not considered testimonial. As such, you couldn’t plead the Fifth Amendment to prevent law enforcement from making you physically unlock your phone. The judge disagreed with this law and ruled otherwise.
A part of me wonders, however, if this way of thinking is correct. After all, measures like warrants exist because of an individual’s refusal to cooperate with law enforcement. While warrants override this refusal due to probable cause and allow officers to seize property or search premises, they only seem to work to the extent of physical objects. However, much incriminating evidence is now moving from physical format to digital format. Officers aren’t always going to find a physical paper trail concerning crime. Thoughts, photographs, videos, notes, and many other things are now kept on phones and digital devices rather than journals or notebooks. Due to this change, maybe an individual should be legally required to give the passcode to an iPhone or computer under certain circumstances.
In two articles I found called “A Tale of Two Phones: Discussion of law Enforcement’s use of the All Writs Act to Enforce Apple to Open Private iPhones” by Meredith Espino and “Breaking iPhones Under CALEA and the All Writs Act: Why the Government was (Mostly) Right” by Steven R. Morrison, there was a case discussed concerning iPhone access. The case pertained to a terrorist attack in 2015. While those responsible for the attack had died, law enforcement recovered an iPhone that potentially contained key information and evidence regarding the attack (Espino, 2017, p. 98-99). However, Apple contested the order law enforcement gave them to assist in opening the iPhone, stating it was a violation of privacy and—therefore—in violation with their contracts with Apple customers (Morrison, 2017, p. 2041). While this differs in some ways from the case Brewster writes about (due to the guilty party being dead), it’s still similar in the sense that there is an urgent situation with no quick way to access case evidence. This feels problematic to me. If law enforcement has a warrant concerning certain individuals, then a passcode to a technological device should be seized and have it count as legal action, right?
I will argue though that in the case discussed by Thomas Brewster, I believe the judge to be in the right for that particular instance. My reasoning behind this is that law enforcement didn’t want to search one particular individual’s phone, but the phones of everyone on the premise (Brewster, p.1). When a warrant is obtained, it is in regard to the property of a particular individual or individuals and the same should be said for technological devices as well.
Basically, there’s going to be a lot to figure out in regards to what limits law enforcement will have in seizing evidence on personal devices. It should be interesting to see how or if the laws change regarding personal devices like iPhones.
References
Brewster, T. Feds can’t force you to unlock your iPhone with Finger or Face, Judge Rules. Forbes. Retrieved from https://utk.instructure.com/courses/94374/files/folder/Readings%20for%20Blogging/4th%20Blog?preview=4725572
Espino, M. (2017). tale of two phones: discussion of law enforcement’s use of the all writs act to enforce apple to open private iphones. Rutgers Computer and Technology Law Journal, 43(1), 97-109. Retrieved from https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/rutcomt43&id=107&men_tab=srchresults#
Morrison, S. R. (2017). Breaking iphones under calea and the all writs act: Why the government was (mostly) right. Cardozo Law Review, 38(6), 2039-2082. https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/cdozo38&id=2111&men_tab=srchresults#
Social Informatics 