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Idaho Magistrate Judge Shoots Down Another Government Request For Compelled Fingerprint Production

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Another small victory for Constitutional rights comes via the same federal magistrate who previously rejected another law enforcement request to compel production of fingerprints to unlock a phone.In May, federal magistrate judge Ronald E. Bush said compelled production of fingerprints violates both the Fourth and Fifth Amendment. He declared the fingerprint application itself to be a search, one performed with the assistance of the suspect. There's the Fourth Amendment issue.And since the government hadn't provided evidence tying the suspect to the phone, producing fingerprints would provide the government with testimonial evidence it didn't have. The government wanted to search the phone for "indica of ownership" -- something it hoped to perform after it had already compelled production of fingerprints. The government had no "foregone conclusion" to work with, so forcing a suspect to give up information only they know (namely, possibly verifying ownership by unlocking the phone) implicated his Fifth Amendment protections against being forced to testify against himself.In this case, Judge Bush has handed down another denial [PDF]. Once again, the government wants to compel the unlocking of a device but doesn't have everything it needs. What the government does have isn't much. The evidence tying the suspect to child porn possession is mostly ephemeral: IP addresses, email addresses, and online accounts. Using this as probable cause, the government is asking to search electronics seized from a searched residence. (The government also wants to search the suspect's car, presumably in case any electronics are stashed there.)As the court points out, the government wants to do things to a phone it hasn't shown will actually need to have this stuff done to it. It's working off an assumption and that assumption isn't enough for the judge to agree to the government's proposed rights violations.

The affidavit describes a feature of the smartphone which, according to the investigator, offers users “the ability to unlock the device via the use of a fingerprint or thumbprint.” It also describes that, in the investigator’s “training and experience, cellular telephone users often enable” such a touch identification security feature “because it is considered to be a more convenient way to unlock the device than by entering a numeric or alphanumeric passcode or password, as well as a more secure way to protect the device’s contents. This is particularly true when the user(s) of the device are engaged in criminal activities and thus have a heightened concern about securing the contents of the device.”The affiant also states that “[t]he passcode or password that would unlock the cellular telephone device found during the search of [the individual, the vehicle, or the residence] is not known to law enforcement. Thus, it will likely be necessary for law enforcement to press [the individual’s] fingers and thumbs to the [smartphone] found during the search . . . in an attempt to unlock the device for the purpose of executing the search authorized by this warrant.” However, the affidavit does not describe a particular reason to believe that the subject cellphone has enabled a touch identification feature or would have such feature enabled if the device were seized during execution of a search warrant.
The attached footnote provides further reasons why the magistrate is rejecting this application for application of fingerprints.
Regardless of the constitutional issues, the application may also be premature and not ripe for decision. The applicant presupposes that a search will uncover and result in seizure of a specific smartphone at the time of the search but does not identify the device beyond a make and model and does not account for the possibility that a search might uncover additional or different devices.
The court reminds the government that it can no longer take phone searches as lightly as it once did. The Supreme Court's Riley decision made it clear phones are not pants pockets or suitcases or file cabinets. In many cases, they can provide access to a large portion of a person's life. When the government wants access to this wealth of information, it needs to deal with sureties and particulars, not assumptions devices will hold evidence and suspects will provide the keys for entrance. Here, the government does not have enough to demand the production of these keys.Further, the government cannot demand someone testify against himself. While other courts are still wrestling with this question, Judge Bush's stance on this issue is crystal clear:
[S]ome actions are not within the Fifth Amendment privilege. Furnishing a blood sample, for instance, or providing a handwriting or voice exemplar, standing in a lineup, or submitting to fingerprinting for identification purposes are not testimonial communications because such actions do not require the suspect “to disclose any knowledge he might have” or to “speak his guilt.” Doe, 487 U.S. at 210–211 (citations omitted). The relevant distinction is the “extortion of information from the accused, . . . the attempt to force him to disclose the contents of his own mind.” Id. at 211 (citations omitted).There is exactly that “extortion” of information here, however. The Government seeks to use the force of a search warrant to compel an individual to literally “open” the “privacies of [his/her] life,” Riley v. California, 573 U.S. at 403, and, by doing so, “to conced[e] the existence, possession and control, and authenticity of the documents tend[ing] to incriminate him.” In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d at 1343. The act of being forced to use one’s fingerprint to successfully open the contents of a smartphone is the equivalent of forcing a tangible oral or written statement from that individual that he or she has at least some degree of possession and control of the phone and possession, control and knowledge of its contents.
Once again, the court finds compelled fingerprint production to unlock devices "testimonial." And if it's testimonial, it's blocked by the Fifth Amendment. The government will just have to find another way to get at the evidence it thinks might reside in the phones it thinks it might find whenever it actually manages to get a warrant signed by this judge. Until then, it seriously needs to rethink its approach to this problem because the usual stuff isn't going to work in this court.

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posted at: 12:00am on 18-Jul-2019
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Ubisoft Once Again Crowdsourcing Content For Video Game, Once Again Gets Unwarranted Backlash

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Between crowdsourcing and the explosion of indie video game developers, many of which are far more permissive in IP realms and far better at actually connecting with their fans, we are perhaps entering a golden age for fan involvement in the video games they love. And it's not just the indie developers getting into this game either; the AAA publishers are, too. One example of this came up last year, when Ubisoft worked with HitRECord to allow fans of the Beyond Good and Evil franchise to submit potential in-game music creations. On HitRECord, other fans would be able to vote and even remix those works. At the end of it all, any music Ubisoft used for Beyond Good and Evil 2 would be paid for out of a pool of money the company had set aside. Cool, right?Not for some in the gaming industry itself. Many who work in the industry decried Ubisoft's program as denying those who make music professionally income for the creation of the game music. Others called Ubisoft's potential payment to fans for their creations "on-spec" solicitations, in which companies only pay for work that actually makes it into the game, a practice that is seen as generally unethical in the industry. Except neither of those criticisms were accurate. Ubisoft specifically carved out a few places for fans to put music into the game, not the entire game. And the "on-spec" accusation would only make sense if these fans were in the gaming music industry, which they weren't. Instead, Ubisoft was actually just trying to connect with its own fans and create a cool program in which those fans could contribute artistically to the game they love, and even make a little money doing so.Fortunately, Ubisoft has apparently not let the criticism keep it from continuing with these experiments, as the company has put out the call for the same sort of program for its next Watchdogs game.

Last week, actor Joseph Gordon-Levitt ‏announced on Twitter that his music production company, HitRecord, would once again partner with Ubisoft, this time to help the publisher create 10 songs for its upcoming open world hacker game, Watch Dogs: Legion. This immediately re-ignited an old debate about the ethics of soliciting work for big budget games from fans.“10 original songs. Collaboratively made for #WatchDogsLegion. By YOU. Come play w/ us,” Gordon-Levitt tweeted on July 11. According to the FAQ on Ubisoft’s website, the publisher will be paying $20,000 for the original music which will be played during the game, like, as one example offered, while you’re driving around the game’s version of London. At $2,000 per song, the proceeds will end up being paid out through HitRecord to whichever of the platform’s users helped create the music.
Once again, you have to really, really work hard to find something unethical in any of that. And, yet, all of the same criticisms are arising. On the one hand, sure, it's mildly understandable that creatives don't like being routed around by gaming companies. On the other hand, it's hard to come off as more anti-fan than complaining about a $20k payout for 10 fan-made songs within a professional game. And yet again, here come the complaints about this being some flavor of on-spec work.
“This sucks,” tweeted Mike Bithell, developer of Thomas Was Alone and the upcoming John Wick Hex game, under the “nospec” hashtag. “Pay people for their labour. Stop exploiting fans and hobbyists, while devaluing the work of those with the gall to actually expect consistent payment for work done. Do better Ubi, we’re counting on you.”“I am still not a fan of what read[s] as ‘spec work under a proprietary open non-exclusive license’ model, & prefer the ‘pay someone to browse SoundCloud to find cool music for which you then talk to the creator & pay them too,’” tweeted Vambleer’s Rami Ismail.
And yet the fans appear to love this, having contributed to the previous game enough that Ubisoft wanted to do it all over again. Here's the thing: if professional video game music composers are confident in their work, they really shouldn't see this as some kind of a huge threat. And I say that as someone that loves video game music. A game company trying to get fans involved in certain parts of the game creation isn't some great evil. It's CwF+RtB, which is something we like around these parts.

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posted at: 12:00am on 18-Jul-2019
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