Legal loophole can force the government to use fingerprints to unlock your device.
In 2013, Apple announced that the iPhone 5s would come equipped with a fingerprint scanner named TouchID. It has become one of the most widely used screen lock for both Android and iPhone, however it is not foolproof. If someone really wanted to access your device, they could wait until you’re fast asleep and use your finger to unlock the device. That is much easier than having to force the person to give away their passcode in some cases. When it comes to a legal standing, it is definitely in a gray area, fingerprints are currently viewed by the law as ‘real or physical evidence,’ meaning that law enforcement has a right to access to them without a warrant. These laws are outdated and don’t particularly state bio-metrics to gain access to a device but more of using bio-metrics as proof.
Some law professors say that this view is now outdated when a fingerprint can provide access to incriminating data.
“It isn’t about fingerprints and the biometric readers,” said Susan Brenner, a law professor at the University of Dayton who studies the nexus of digital technology and criminal law, but rather, “the contents of that phone, much of which will be about her, and a lot of that could be incriminating.”
Others, however, disagree.
Albert Gidari, the director of privacy at Stanford Law School’s Center for Internet and Society, said the action might not violate the 5th Amendment prohibition of self-incrimination. “Unlike disclosing passcodes, you are not compelled to speak or say what’s ‘in your mind’ to law enforcement,” Gidari said. “‘Put your finger here’ is not testimonial or self-incriminating.”
We are seeing more and more cases where iPhones are becoming the leading form on evidence in big investigations like the San Bernardino terrorist attack. What are your thoughts on gaining access to encrypted devices? For me, it will have to be case by case but as for us small folk, if you dig deep enough, you will find something.