State Appeals Court Says Unlocking A Phone With A Fingerprint Doesn't Violate The Fifth Amendment

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As was hinted heavily three years ago, you might be better off securing your phone with a passcode than your fingerprint. While a fingerprint is definitely unique and (theoretically...) a better way to keep thieves and snoopers from breaking into your phone, it's not much help when it comes to your Fifth Amendment protections against self-incrimination.The Minnesota Appeals Court has ruled [PDF] that unlocking a phone with a fingerprint is no more "testimonial" than a blood draw, police lineup appearance, or even matching the description of a suspected criminal. (h/t Orin Kerr)

Diamond relies on In re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335 (11th Cir. 2012), to support his argument that supplying his fingerprint was testimonial. In In re Grand Jury, the court reasoned that requiring the defendant to decrypt and produce the contents of a computer’s hard drive, when it was unknown whether any documents were even on the encrypted drive, “would be tantamount to testimony by [the defendant] of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.” Id. at 1346. The court concluded that such a requirement is analogous to requiring production of a combination and that such a production involves implied factual statements that could potentially incriminate. Id.By being ordered to produce his fingerprint, however, Diamond was not required to disclose any knowledge he might have or to speak his guilt. See Doe, 487 U.S. at 211, 108 S. Ct. at 2348. The district court’s order is therefore distinguishable from requiring a defendant to decrypt a hard drive or produce a combination. See, e.g., In re Grand Jury, 670 F.3d at 1346; United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (holding that requiring a defendant to provide computer password violates the Fifth Amendment). Those requirements involve a level of knowledge and mental capacity that is not present in ordering Diamond to place his fingerprint on his cellphone. Instead, the task that Diamond was compelled to perform—to provide his fingerprint—is no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing.

Diamond also argues that he “was required to identify for the police which of his fingerprints would open the phone” and that this requirement compelled a testimonial communication. This argument, however, mischaracterizes the district court’s order. The district court’s February 11 order compelled Diamond to “provide a fingerprint or thumbprint as deemed necessary by the Chaska Police Department to unlock his seized cell phone.” At the April 3 contempt hearing, the district court referred to Diamond providing his “thumbprint.” The prosecutor noted that they were “not sure if it’s an index finger or a thumb.” The district court answered, “Take whatever samples you need.” Diamond then asked the detectives which finger they wanted, and they answered, “The one that unlocks it.”

It is clear that the district court permitted the state to take samples of all of Diamond’s fingerprints and thumbprints. The district court did not ask Diamond whether his prints would unlock the cellphone or which print would unlock it, nor did the district court compel Diamond to disclose that information. There is no indication that Diamond would have been asked to do more had none of his fingerprints unlocked the cellphone. Diamond himself asked which finger the detectives wanted when he was ready to comply with the order, and the detectives answered his question. Diamond did not object then, nor did he bring an additional motion to suppress the evidence based on the exchange that he initiated.

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China Bolsters The Great Firewall, Cracks Down Harder On VPN Use

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It sometimes takes a little while, but sooner or later most governments engaged in ham-fisted internet censorship get around to taking aim at VPNs. While VPNs certainly have numerous, legitimate uses (including an additional layer of security when on public WiFi), they're also great tools when it comes to preventing your government, ISP, or anybody else from nosily tracking your online behavior. As such, you'll see broadcasters or even Netflix quick to villify their use to enforce increasingly pointless geographical viewing restrictions.But such crackdowns are also a favorite tool of more restrictive governments, whether it's to protect VoIP revenue for state-run telecom monopolies, or to prevent users from tap-dancing around state-mandated filters or other restrictions.In China, home of the largest internet filter ever constructed, the Chinese government has ramped up its own long-standing war on VPNs by announcing a mass shutdown of VPN providers that have been helping citizens get around the great firewall.According to China's Ministry of Industry and Information Technology, all VPN providers now need prior government approval to operate, a move toward effectively making VPN use illegal entirely. Moving forward, all basic telecom providers and ISPs are barred from setting up or renting special lines (including VPNs) to carry out cross-border operations unless previously arranged. The new effort, which lasts till March 31, 2018, appears to focus more specifically on companies providing VPN services to individuals.This banning of a fundamental encryption tool is necessary, the Ministry said in a notice published to its website, to "strengthen cyberspace" and cure some ambiguous "disordered development" in the nation's telecom market:

"China's internet connection service market ... has signs of disordered development that require urgent regulation and governance, the ministry said. The crackdown on unregulated internet connections aimed to "strengthen cyberspace information security management."

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