Judge orders woman to unlock iPhone using her fingerprint

Just weeks before the government announced it will no longer pursue its bid to force Apple to unlock the iPhone of one of the San Bernardino, Calif., shooters, federal officials in Los Angeles compelled the girlfriend of an alleged Armenian gang member to unlock her own phone using her fingerprint.

Critics have raised questions about whether the demand infringed on Paytsar Bkhchadzhyan’s right against self-incrimination, introducing a new wrinkle into the debate over how law enforcement should be able to access encrypted information during investigations.

{mosads}Authorities obtained a search warrant that demanded Bkhchadzhyan press her finger against a seized iPhone equipped with Apple’s fingerprint unlocking technology to gain access to information on the device, The Los Angeles Times reports.

“It isn’t about fingerprints and the biometric readers,” Susan Brenner, a law professor at the University of Dayton, told The Times. Rather, she said, the demand involves “the contents of that phone, much of which will be about her, and a lot of that could be incriminating.”

According to Brenner, forcing Bkhchadzhyan to unlock the device is equivalent to compelling her to produce incriminating documents — she has authenticated the contents of the phone, effectively testifying without ever speaking a word.

Traditionally, courts have treated fingerprints as “real or physical evidence” that does not require a warrant to collect. But on certain iPhones, a fingerprint performs the same function as a four-digit passcode.

Several judges, including a federal appeals court, have ruled that forcing a suspect to decrypt his or her data is unconstitutional.

The issue is far from settled. Some legal experts disagree with Brennan’s assessment that the court order infringed upon Bkhchadzhyan’s Fifth Amendment rights.

“Unlike disclosing passcodes, you are not compelled to speak or say what’s ‘in your mind’ to law enforcement,” Albert Gidari, the director of privacy at Stanford Law School’s Center for Internet and Society, told The Times. “‘Put your finger here’ is not testimonial or self-incriminating.”

The fingerprint sensor, called TouchID, is a relatively new addition to Apple products, available only on devices issued after 2013. Few courts have taken up the issue of whether a suspect can be forced to unlock a device using biometric sensors.

In one 2014 case in Virginia, a judge ordered that a man accused of trying to strangle a woman could be ordered to provide his fingerprint to open a locked phone, but could not be ordered to disclose his passcode.

The judge argued that providing a fingerprint was akin to handing over a key, a more traditional authority of court-ordered search warrants. But providing a passcode stored in a person’s mind was the equivalent of revealing knowledge — effectively the same as testifying.

It was not immediately clear what information officials sought on Bkhchadzhyan’s device.