WEBVTT - Police Stopped from Forcing iPhone Unlocking (Audio)

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<v Speaker 1>Another episode in the saga of police investigations and smartphone technology.

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<v Speaker 1>The government has been allowed to force suspects to unlock

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<v Speaker 1>an iPhone with their fingerprint if they're sufficient evidence. However,

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<v Speaker 1>a federal judge in Illinois has drawn a line in

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<v Speaker 1>the sand. The government was investigating an Internet connection being

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<v Speaker 1>used to traffic and child pornography and wanted a warrant

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<v Speaker 1>to compel the people at the location to unlock any

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<v Speaker 1>Apple devices with their fingerprints. Judge David Wiseman refused to

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<v Speaker 1>issue the warrant, citing concerns about potential violations of the

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<v Speaker 1>Fourth and Fifth Amendment. Our guest is Robert Mintz. He's

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<v Speaker 1>the head of the White Collar and Government Investigations Group

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<v Speaker 1>at McCarter and English and a former federal prosecutor. Bob

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<v Speaker 1>under what circumstances is it clear that the government can

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<v Speaker 1>get a warrant to force someone to unlock an iPhone

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<v Speaker 1>with their fingerprint. Well, as you mentioned, that issue has

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<v Speaker 1>come before the courts before, and the courts have held

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<v Speaker 1>where there is a very specified need for that information

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<v Speaker 1>and the and the government has made out clear probable

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<v Speaker 1>cause um connecting the individual with the information that may

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<v Speaker 1>be on their cell phone. Prosecutors can in some instances

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<v Speaker 1>force an individual to unlock a cell phone, but in

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<v Speaker 1>this case, as you mentioned, the court found that there

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<v Speaker 1>was insufficient evidence based on the warrant that was presented

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<v Speaker 1>to the magistrate judge to require individuals who just happened

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<v Speaker 1>to be on the premises to use their thumbs to

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<v Speaker 1>unlock their cell phones, and the court relied both on

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<v Speaker 1>Fourth Amendment and on System Amendment grounds in denying that request.

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<v Speaker 1>You know, Bob, it seems a little strange on some

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<v Speaker 1>level to be talking about the Fourth Amendment rights of

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<v Speaker 1>people when we don't even know if they're going to

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<v Speaker 1>be there and their Fifth a moment rights, we don't

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<v Speaker 1>know who's going to be there. Is Is it normal

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<v Speaker 1>in a warrant application for the government to ask about

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<v Speaker 1>the methods by which they're going to search people they

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<v Speaker 1>might find at the at the location. Well, that is unusual, Michael.

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<v Speaker 1>I mean, usually what a warrant does is get establishes

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<v Speaker 1>probable cause that a crime has been committed and that

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<v Speaker 1>evidence of that crime is located at a particular premises. So,

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<v Speaker 1>in other words, it is based entirely on the premises

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<v Speaker 1>and not on a person in this case, this warrant

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<v Speaker 1>application and the judge's opinion got into issues of acts

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<v Speaker 1>of production and conduct by individuals who, as you mentioned,

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<v Speaker 1>may or may not even be at the premises at

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<v Speaker 1>the time that the search is executed. Bob, What was

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<v Speaker 1>the government's argument and the judge's response. Well, the government

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<v Speaker 1>argued first that there was no real Fourth Amendment concern

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<v Speaker 1>here because they had a right to detain individuals who

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<v Speaker 1>were present at the time of the or and therefore

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<v Speaker 1>that that element of the search was reasonable. And the

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<v Speaker 1>more interesting aspect of it was whether or not, once

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<v Speaker 1>somebody was detained, assuming that was reasonable, whether they could

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<v Speaker 1>be forced to use their sumb to unlock their own phone,

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<v Speaker 1>and whether or not that act would violate their Fifth

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<v Speaker 1>Amendment right against compelled self incrimination and not got into

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<v Speaker 1>a whole discussion about whether this simple act of placing

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<v Speaker 1>your thumb on your iPhone or on your iPad was

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<v Speaker 1>an act of testimony or was it merely a physical act.

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<v Speaker 1>Because there's a long line of cases that clearly established

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<v Speaker 1>that people have no Sis Amendment right to um giving

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<v Speaker 1>handwriting exemplars. For example, you can be compelled to give

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<v Speaker 1>a blood sample, you can be compelled to stand up

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<v Speaker 1>in a lineup, and of course you can be compelled

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<v Speaker 1>to give your fingerprints. That that that precedent goes back

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<v Speaker 1>to at least nineteen sixty seven, if not before that.

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<v Speaker 1>But here the court is saying that it's not simply

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<v Speaker 1>providing a fingerprint that can place you at the scene

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<v Speaker 1>of a crime. But by giving your fingerprint and unlocking

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<v Speaker 1>your cell phone, you are in essence testifying because you're

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<v Speaker 1>letting law enforcement know that you access that phone. Before that,

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<v Speaker 1>you set up the phone so it would access only

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<v Speaker 1>your fingerprint, and it essentially ties you to the information

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<v Speaker 1>on the cell phone in a way that's simply providing

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<v Speaker 1>your fingerprint does not well, But would it be any different, Bob,

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<v Speaker 1>if say the police found a person standing next to

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<v Speaker 1>a cell phone at the location and then said please

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<v Speaker 1>put all ten of your fingers on and they'll see

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<v Speaker 1>if any of them opens it up, and the person

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<v Speaker 1>doesn't tell them anything about it, Well, it's it's that

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<v Speaker 1>that that is a similar case. And and the judge

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<v Speaker 1>actually talked about the difference between um asking somebody to

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<v Speaker 1>put their fingerprint on ten different phones and tie them

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<v Speaker 1>to the to an individual phone versus tying them to

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<v Speaker 1>one phone they happen to have on their on their presence.

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<v Speaker 1>I think what we're seeing here that makes this case

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<v Speaker 1>unique and and has been brought up in other cases,

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<v Speaker 1>is that courts are troubled by the vast amount of

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<v Speaker 1>information that is contained on cell phones these days. And

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<v Speaker 1>there was a Supreme Court case just a few years ago,

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<v Speaker 1>um the Riley case, which talked about the fact that

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<v Speaker 1>this is not simply a cell phone, but they referred

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<v Speaker 1>to it as a mini computer. And the magistrate judge

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<v Speaker 1>in this case cited that case to say that there's

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<v Speaker 1>a higher Fourth Amendment standards here because you're not simply

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<v Speaker 1>accessing a phone to find out what calls somebody made

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<v Speaker 1>or what calls somebody may have received, but you're accessing

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<v Speaker 1>essentially their whole life, their medical records, their contacts. You

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<v Speaker 1>can find out locations and where somebody has been, where

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<v Speaker 1>somebody may have purchased um uh things, and and and

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<v Speaker 1>tie their location, their associations. It really opens up their

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<v Speaker 1>entire life. And so courts have now used a higher

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<v Speaker 1>andered a higher Fourth Amendment standard untoldntole prosecutors that you

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<v Speaker 1>have to really have specific evidence that ties the individual

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<v Speaker 1>to a crime and shows that there's a connection between

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<v Speaker 1>the individual and the information on that cell phone before

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<v Speaker 1>a judge is going to allow you sort of a

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<v Speaker 1>blanket provision as the prosecutors were looking for in this case,

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<v Speaker 1>to say that everybody who might be present has to

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<v Speaker 1>put their finger on their phone and give up that

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<v Speaker 1>type of personal and private information. Thank you. That's Bob

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<v Speaker 1>Mints of Macarter and English and a former federal prosecutor

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<v Speaker 1>coming up on Bloomberg law. A thirteen year old Michigan

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<v Speaker 1>girl with cerebral palsy and her service dog Wonder when

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<v Speaker 1>a case for disabled students at the Supreme Court. This

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<v Speaker 1>is Bloomberg