Tuesday, January 16th, 2018
What can your face do for you?
In Marlowe’s Doctor Faustus, he muses that Helen of Troy’s face was so beautiful that her abandonment of her husband and elopement triggered the Trojan War and the launching of a thousand ships.
A classic Timex watch commercial from the 80’s shows an ugly woman’s face cracking all the glass in town except for a Timex watchface.
But can the police use your face to snoop through your phone?
The new iPhone X replaces optional fingerprint unlock with optional facial recognition unlock. Could the police use your face against your will to unlock your phone? For other phones, could the police force you to provide a fingerprint to do so? What about a passcode?
Aside from searches at the border, whether the police can force you to unlock your phone is a two-step analysis.
First, unless you consent to the search, the police generally must have a warrant based on probable cause to search your phone. The Supreme Court held that the Fourth Amendment requires that.
If things get that far, could you use your Fifth Amendment constitutional privilege against self-incrimination to refuse to provide the login credential?
This law is developing, but early lower-level court decisions hold you can be compelled to provide a fingerprint because a fingerprint isn’t testimony. But you can’t be required to divulge your passcode, because giving that passcode is testimony.
A Virginia Beach trial-court judge drew that distinction in 2014. Some federal courts have followed that view, although not uniformly. Neither the U.S. Supreme Court nor the federal appellate courts have yet addressed this issue.
No court has yet held whether the police can use your face to unlock your phone. But if you can be compelled to provide a fingerprint to do so, it’s hard to imagine a court ruling the police can’t use your face for that purpose.
Things are different at the border. Under the “border search exception,” federal agents can search your possessions without probable cause, regardless of whether you are a U.S. citizen.
At the border, if you refuse to unlock your phone when asked, you can be detained for hours for questioning, even if that causes you to miss your flight. A non-citizen can be denied entry into the U.S. based on a refusal to unlock.
Federal border agents need only “reasonable suspicion” to keep your phone to try to inspect its contents. No probable cause is required.
Practically speaking, this means you could be forced to unlock your phone to get through.
The odds of this happening are small. Reportedly phone searches at the border rose to 5000 per month in February 2017. Because about 400 million monitored border crossings occur per year, that means less than .02% of all border crossings trigger a phone search.
If you wish to guard your phone privacy from the police, what can you do?
You could disable biometric unlocking (i.e., unlocking by fingerprint or face). That’s inconvenient, though.
If you believe a police confrontation is imminent, you can quickly disable biometric unlocking by powering off your phone. Unlocking after powering back up will require your passcode – biometrics won’t work.
On Apple phones running the recent iOS 11, tapping the power button five times quickly has the same effect. Some call this feature the “cop lock.”
You could use an unusual finger (e.g., pinky) for your fingerprint unlock. Most phones are set to require a password after a certain number of fingerprint fails. My iPhone, running iOS 11, requires a passcode after three failures. Thus, if you are compelled to provide a fingerprint, your right index finger or thumb won’t unlock the phone.
But keep this issue in perspective. Most of the stuff on your phone is communicated through your phone service provider and stored in the cloud, where it might be reachable by subpoena. Stuff you place on social media can be obtained by subpoena from social media. Overall, there are other avenues for getting to your private electronic communications that don’t require your unlock face, finger, or code.
Perhaps the best line of defense is to keep what’s on your phone clean rather than hoping you can keep the bad stuff locked away.
Written on January 16, 2018
by John B. Farmer
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