Fingerprint ID on smartphones less protected in court than a password, ruling suggests

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It isn’t clear why the feds made an unusual effort to access a smartphone that had been used by Paytsar Bkhchadzhyan, a 29-year-old Los Angeles woman who took a no-contest plea in an identity-theft case.

But it required only about 45 minutes after she was sentenced in Van Nuys, California, on Feb. 25 for a federal magistrate judge 17 miles away to issue a warrant requiring her to provide the fingerprint needed to unlock the phone, reports the Los Angeles Times (sub. req.) Since she was already in custody, it was quickly obtained by the FBI.

The ruling spotlights a potential security issue with smartphones that use fingerprint technology for authentication purposes—they may have less protection, in a court of law, than a traditional password.

“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,” Albert Gidari of Stanford Law School’s Center for Internet and Society told the newspaper.

Hence, he suggested, the Fifth Amendment may offer more of a legal shield to those whose smartphones are protected by a password rather than fingerprint technology.

Some courts have found the Fifth Amendment argument persuasive, although at least one federal prosecutor has suggested that having an individual simply enter the password into the phone without revealing it could thwart this argument, reports an earlier Slate article.

Meanwhile, those whose passwords aren’t written down or otherwise stored in an accessible manner can effectively block access, regardless of what a judge says—if they are willing to risk a contempt finding, and the feds aren’t prepared to take the necessary time to hack into the phone.

Related coverage:

Gadgets 360 (opinion): “Why I’m Not a Fan of Smartphones With Fingerprint Scanners”

See also:

ABAJournal.com: “DOJ says it unlocked iPhone of San Bernardino shooter, seeks to vacate order requiring Apple’s help”

ABAJournal.com: “FBI paid professional hackers to help unlock San Bernardino shooter’s iPhone”

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