Authorities managed to obtain a search warrant compelling the girlfriend of an Armenian gang member to press her finger against an iPhone in order to unlock it via Touch ID. Prosecutors wanted access to the data inside the device.
The phone belonging to 29 year old Paytsar Bkhchadzhyan was seized from a residence linked to Sevak Mesrobian, a member of an Armenian Power gang with the moniker of "40."
About 45 minutes after Bkhchadzhyan was taken into custody, U.S. Magistrate Judge Alicia Rosenberg signed off on the warrant which ordered the defendant to press her finger on the phone.
While the U.S. Supreme Court ruled that police can search phones with a warrant and compel a person in custody to provide their fingerprints without a judge's permission, the situation surrounding biometric data is different as it could lead to self-incrimination.
"It isn't about fingerprints and the biometric readers," said Susan Brenner, a law professor at the University of Dayton, but rather, "the contents of that phone, much of which will be about her, and a lot of that could be incriminating."
It could be argued that the act of compelling a person to unlock their iPhone via fingerprint breaches their 5th Amendment rights to protection against self-incrimination. Essentially, Bkchadzhyan was forced to testify without uttering a word. By unlocking the phone she authenticated its contents.
"By showing you opened the phone, you showed that you have control over it," Brenner said. "It's the same as if she went home and pulled out paper documents — she's produced it."
Others argue that it's not self-incriminating. Director of Privacy at Stanford Law School's Center for Internet and Society Albert Gidari says, "Unlike disclosing passcodes, you are not compelled to speak or say what's 'in your mind' to law enforcement. 'Put your finger here' is not testimonial or self-incriminating."
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