Speaker 1: Another episode in the saga of police investigations and smartphone technology.
Speaker 1: The government has been allowed to force suspects to unlock
Speaker 1: an iPhone with their fingerprint if they're sufficient evidence. However,
Speaker 1: a federal judge in Illinois has drawn a line in
Speaker 1: the sand. The government was investigating an Internet connection being
Speaker 1: used to traffic and child pornography and wanted a warrant
Speaker 1: to compel the people at the location to unlock any
Speaker 1: Apple devices with their fingerprints. Judge David Wiseman refused to
Speaker 1: issue the warrant, citing concerns about potential violations of the
Speaker 1: Fourth and Fifth Amendment. Our guest is Robert Mintz. He's
Speaker 1: the head of the White Collar and Government Investigations Group
Speaker 1: at McCarter and English and a former federal prosecutor. Bob
Speaker 1: under what circumstances is it clear that the government can
Speaker 1: get a warrant to force someone to unlock an iPhone
Speaker 1: with their fingerprint. Well, as you mentioned, that issue has
Speaker 1: come before the courts before, and the courts have held
Speaker 1: where there is a very specified need for that information
Speaker 1: and the and the government has made out clear probable
Speaker 1: cause um connecting the individual with the information that may
Speaker 1: be on their cell phone. Prosecutors can in some instances
Speaker 1: force an individual to unlock a cell phone, but in
Speaker 1: this case, as you mentioned, the court found that there
Speaker 1: was insufficient evidence based on the warrant that was presented
Speaker 1: to the magistrate judge to require individuals who just happened
Speaker 1: to be on the premises to use their thumbs to
Speaker 1: unlock their cell phones, and the court relied both on
Speaker 1: Fourth Amendment and on System Amendment grounds in denying that request.
Speaker 1: You know, Bob, it seems a little strange on some
Speaker 1: level to be talking about the Fourth Amendment rights of
Speaker 1: people when we don't even know if they're going to
Speaker 1: be there and their Fifth a moment rights, we don't
Speaker 1: know who's going to be there. Is Is it normal
Speaker 1: in a warrant application for the government to ask about
Speaker 1: the methods by which they're going to search people they
Speaker 1: might find at the at the location. Well, that is unusual, Michael.
Speaker 1: I mean, usually what a warrant does is get establishes
Speaker 1: probable cause that a crime has been committed and that
Speaker 1: evidence of that crime is located at a particular premises. So,
Speaker 1: in other words, it is based entirely on the premises
Speaker 1: and not on a person in this case, this warrant
Speaker 1: application and the judge's opinion got into issues of acts
Speaker 1: of production and conduct by individuals who, as you mentioned,
Speaker 1: may or may not even be at the premises at
Speaker 1: the time that the search is executed. Bob, What was
Speaker 1: the government's argument and the judge's response. Well, the government
Speaker 1: argued first that there was no real Fourth Amendment concern
Speaker 1: here because they had a right to detain individuals who
Speaker 1: were present at the time of the or and therefore
Speaker 1: that that element of the search was reasonable. And the
Speaker 1: more interesting aspect of it was whether or not, once
Speaker 1: somebody was detained, assuming that was reasonable, whether they could
Speaker 1: be forced to use their sumb to unlock their own phone,
Speaker 1: and whether or not that act would violate their Fifth
Speaker 1: Amendment right against compelled self incrimination and not got into
Speaker 1: a whole discussion about whether this simple act of placing
Speaker 1: your thumb on your iPhone or on your iPad was
Speaker 1: an act of testimony or was it merely a physical act.
Speaker 1: Because there's a long line of cases that clearly established
Speaker 1: that people have no Sis Amendment right to um giving
Speaker 1: handwriting exemplars. For example, you can be compelled to give
Speaker 1: a blood sample, you can be compelled to stand up
Speaker 1: in a lineup, and of course you can be compelled
Speaker 1: to give your fingerprints. That that that precedent goes back
Speaker 1: to at least nineteen sixty seven, if not before that.
Speaker 1: But here the court is saying that it's not simply
Speaker 1: providing a fingerprint that can place you at the scene
Speaker 1: of a crime. But by giving your fingerprint and unlocking
Speaker 1: your cell phone, you are in essence testifying because you're
Speaker 1: letting law enforcement know that you access that phone. Before that,
Speaker 1: you set up the phone so it would access only
Speaker 1: your fingerprint, and it essentially ties you to the information
Speaker 1: on the cell phone in a way that's simply providing
Speaker 1: your fingerprint does not well, But would it be any different, Bob,
Speaker 1: if say the police found a person standing next to
Speaker 1: a cell phone at the location and then said please
Speaker 1: put all ten of your fingers on and they'll see
Speaker 1: if any of them opens it up, and the person
Speaker 1: doesn't tell them anything about it, Well, it's it's that
Speaker 1: that that is a similar case. And and the judge
Speaker 1: actually talked about the difference between um asking somebody to
Speaker 1: put their fingerprint on ten different phones and tie them
Speaker 1: to the to an individual phone versus tying them to
Speaker 1: one phone they happen to have on their on their presence.
Speaker 1: I think what we're seeing here that makes this case
Speaker 1: unique and and has been brought up in other cases,
Speaker 1: is that courts are troubled by the vast amount of
Speaker 1: information that is contained on cell phones these days. And
Speaker 1: there was a Supreme Court case just a few years ago,
Speaker 1: um the Riley case, which talked about the fact that
Speaker 1: this is not simply a cell phone, but they referred
Speaker 1: to it as a mini computer. And the magistrate judge
Speaker 1: in this case cited that case to say that there's
Speaker 1: a higher Fourth Amendment standards here because you're not simply
Speaker 1: accessing a phone to find out what calls somebody made
Speaker 1: or what calls somebody may have received, but you're accessing
Speaker 1: essentially their whole life, their medical records, their contacts. You
Speaker 1: can find out locations and where somebody has been, where
Speaker 1: somebody may have purchased um uh things, and and and
Speaker 1: tie their location, their associations. It really opens up their
Speaker 1: entire life. And so courts have now used a higher
Speaker 1: andered a higher Fourth Amendment standard untoldntole prosecutors that you
Speaker 1: have to really have specific evidence that ties the individual
Speaker 1: to a crime and shows that there's a connection between
Speaker 1: the individual and the information on that cell phone before
Speaker 1: a judge is going to allow you sort of a
Speaker 1: blanket provision as the prosecutors were looking for in this case,
Speaker 1: to say that everybody who might be present has to
Speaker 1: put their finger on their phone and give up that
Speaker 1: type of personal and private information. Thank you. That's Bob
Speaker 1: Mints of Macarter and English and a former federal prosecutor
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