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Court Says Compelled Production Violates Fifth Amendment... Unless The Gov't Takes Certain Steps First

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A federal judge in California has issued a ruling [PDF] on the Fifth Amendment that upholds both the Constitutional right and a request that appears to violate it. It doesn't all fit together perfectly, but the "foregone conclusion" doctrine factors into it. But constraints are put on this conclusion and, ultimately, that's how the government is permitted to carry out this search.It originates, as so many of these do, from a drug investigation. The government believes it can find evidence it needs for its prosecution by searching the phone found on the suspect. Bad news: the phone's contents are locked behind a biometric wall and it needs judicial permission to force the suspect to open the phone for it.The government argued that biometric features like fingerprints, retinas, blood, facial features, etc. are non-testimonial because they are physical evidence, not testimony. Obviously, a face that unlocks a phone is also a face anyone can see. It imparts no knowledge the suspect may want to keep secret. But combined with a locked device requiring biometric input, it actually imparts knowledge law enforcement may not have when they seek compelled production: it identifies the person as the owner of the device.This can be testimonial, depending on the government's foregone conclusions, or lack thereof. The court says as much here:

Here, compelling an individual who is a target of the investigation to use his or her finger or face to unlock a device represents incriminating testimony within the meaning of the Fifth Amendment because it amounts to an assertion of fact that that the individual has the ability to unlock the device, which in turn makes it more likely that the individual locked the device and put the material sought by the warrant on the device.
More to the point, the government's arguments about biometric features not being testimonial is a dodge. Unlike being fingerprinted after an arrest, applying a fingerprint to a phone gives the government what it really wants -- not what it says it wants when it engages in this sort of intellectual dishonesty. The court calls this out:
Unlike a fingerprint or blood sample, which is obtained for the purpose of identifying a particular individual, the only purpose of compulsory application of a biometric feature to a device is to obtain access to the device's contents; the government has no interest in obtaining the physical characteristic (e.g., the fingerprint) per se.
So, if compelled production of fingerprints, retinas, or whatever's needed to unlock a seized phone violates the Fifth Amendment, how does the government work around it? Well, normally the court would examine its conclusions -- what evidence the government already has that links the locked device to the suspect in custody.In this case, the court doesn't go that far. It gets out ahead of this matter and forces the government to reach these conclusions before it can start applying biometric features.
During the execution of the search of the SUBJECT PREMISES described in Attachment A, law enforcement personnel are authorized to compel [named individuals] to apply their respective biometric feature(s) to a smartphone or other electronic device capable of being unlocked by such feature in order to search the contents of the device as authorized by this warrant, but only if the following conditions are met:(1) the device is found on the person of one of the individuals named above or at the SUBJECT PREMISES; and(2) as to a particular device, law enforcement personnel have information that the particular individual who is compelled to apply his or her biometric feature(s) has the ability to unlock that device, such that his or her ability to unlock the device is a foregone conclusion.
This means the government can't find a bunch of devices and start playing fingerprint roulette with this court order. It will have to find devices on certain people and then it still needs to be able to connect the device to the person holding it before it can compel production.This is the balance the court strikes: the government can bypass the Fifth Amendment if it lines everything up first. It's the same sort of compromise courts create for the Fourth Amendment. Unreasonable searches are forbidden. A warrant, granted by the court, allows the government to engage in unreasonable searches. In this case, the court is creating a narrow exception to the Fifth Amendment that forces the government to show its work before it can start compelling production. It's not perfect, but it will have to do until more case law is established and higher-level courts are willing to start handing down precedent.


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posted at: 12:00am on 24-Sep-2019
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During A Police Raid, Russian Activist Uses Drone To Whisk Sensitive Data To Safety

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Drones have moved beyond the novelty stage, and are now capable of having a global impact. That was shown most dramatically by the recent drone attack on the world's largest oil processing facility in Saudi Arabia. The loss of production has caused the price of oil to spike, and fears about a global recession to mount -- all because of a few tiny drones. An article in the Guardian suggests:

Drones are now an integral part of the inventory of the region's most advanced militaries, and the also-rans. Non state actors have been clamouring to secure them as well -- convinced by the utility of hard-to-detect, dispensable flying toys to be used as weapons of war.
But as Techdirt has noted before, drones are not all about death and destruction. BBC News has an interesting example of a novel use from Russia. It concerns a police raid on the flat of Sergey Boyko, who heads the local branch of the movement of opposition leader Alexei Navalny. Raids were conducted in more than 40 cities across the country, allegedly investigating money laundering, something denied by Navalny's supporters. Elsewhere, the police seized activists' computers and mobile phones. But they came away empty-handed from their raid on Boyko, thanks to the use of a small drone:
The drone was loaded with various hard disks, solid-state drives and flash sticks containing "very important" information that he did not want to fall into the police's hands, according to the activist."Done. The evacuation has been carried out. The drone reached its destination," he says at one point.
The drone's destination was an unnamed friend of Boyko, presumably not an obvious one that the police might easily find in their search for the data. Boyko was clearly expecting to be raided. He not only had the presence of mind to have a drone to hand for the delivery, but he also recorded the police raid as it was happening. The video concludes with a plea for viewers to support the Navalny campaign financially -- a neat way of using the police raid against the authorities who ordered it. The whole episode is another indication of how Russians seem able to keep calm in even the most difficult situations, which is probably just as well given the way that some people drive there.
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