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Would there be anything legally wrong if, when the police force you to unlock your phone with your fingerprint, you intentionally use an unregistered finger multiple times so as to have the phone then require a password?

  • http://www.macrumors.com/2014/10/31/fingerprints-not-protected-by-fifth-amendment/ A Circuit Court judge in Virginia http://hamptonroads.com/2014/10/police-can-require-cellphone-fingerprint-not-pass-code?wpisrc=nl-swbd&wpmm=1 that fingerprints are not protected by the Fifth Amendment, a decision that has clear privacy implications for fingerprint-protected devices like newer iPhones and iPads. According to Judge Steven C. Fucci, while a criminal defendant can't be compelled to hand over a passcode to police officers for the purpose of unlocking a cellular device, law enforcement officials can compel a defendant to give up a fingerprint. The Fifth Amendment states that "no person shall be compelled in any criminal case to be a witness against himself," which protects memorized information like passwords and passcodes, but it does not extend to fingerprints in the eyes of the law, as speculated by http://www.wired.com/2013/09/the-unexpected-result-of-fingerprint-authentication-that-you-cant-take-the-fifth/ last year. Judge Steven C. Frucci ruled this week that giving police a fingerprint is akin to providing a DNA or handwriting sample or an actual key, which the law permits. A pass code, though, requires the defendant to divulge knowledge, which the law protects against, according to Frucci's written opinion. The ruling stemmed from a case involving David Baust, who was accused of strangling his girlfriend. Prosecutors believed Baust may have stored video of the attack on his phone, and requested that the judge force him to unlock it. If protected by a passcode, Baust will not be required to unlock his phone under the Fifth Amendment, but if protected with a fingerprint, he could potentially be forced to unlock the device. If Baust's phone is an iPhone that's equipped with Touch ID, it's very likely that it will be passcode locked at this point and thus protected by law. Touch ID requires a passcode after 48 hours of disuse, a restart, or three failed fingerprint entry attempts, and the device has probably been in police custody for quite some time. It is unclear if the judge's ruling will have an impact on future cases involving cellular devices protected with fingerprint sensors, as it could be overturned by an appeal or a higher court.

  • Answer:

    Yes; because you'd be in intentional and willful violation of the court order (search warrant) ordering you to do so, you'd likely be held in contempt.  You'd also be subject to charges for destruction of evidence and obstruction of justice. At trial, your intentional attempt at hiding or destroying evidence would be admissible against you as substantive evidence of your guilt. This is no different than if the police arrived with a warrant for your home and you responded by trying to burn down your home.

Matthew Bohrer at Quora Visit the source

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I have to agree with the circuit court here and I will explain why.  You can be compelled to give DNA, blood, and fingerprints via a warrant because these are things you ARE.  You can be forced to produce the phone because it is something you HAVE.  What you generally can't be forced to do is tell them something you KNOW.  However forcing you to swipe your finger is an example of something you are and nothing would logically prevent them from forcing the swipe.  However I don't think they could demand you tell them WHICH finger to swipe (things you know).  But you would have to swipe whatever finger you were ordered to.Either way, don't use fingerprints to lock something you want to stay locked.  Use a password and not a PIN, yes its a pain but it is more secure with a LOT more permutations.

Elliott Whitlow

I assume you have a selection of spare fingers for just such occasions.But a serious point for a moment, I think the answer by Matthe Bohrer is correct if you have already been 'served notice' to unlock your phone and then deliberately do something to frustrate this requirement (why not simply stamp your phone into little bits there and then. I have to say that if I were in that position and someone destroyed their phone in front of me I would probably shrug and say we weren't that interested in it anyway and smirk - but that's just me being cruel).One thing that occurs to me is that when you set up your security in the first place and it asks for your fingerprint to store for comparison, there is nothing stopping you from getting your mate to dab the phone instead, if you were that worried about security - that said, you would have to drag him about with you everywhere just to use it. Thinking about it, if you were required to provide the unlock code, can you refuse on the grounds that you do not wish to incriminate a potentially innocent person who may have no idea what is on your phone?One for the lawyers I think.

Ralph King

In the UK it is illegal not to divulge a password when requested to do so. The choice is then to consider whether the punishment for not divulging a password is worth preventIng whatever evidence that is on the phone from becoming known. For example,  if your phone stored kiddy porn, you'd probably decode that taking the punishment of not giving up your password was worth it, but if all you phone contained was evidence of a misdemeanour  (I don't know, like a video of you putting washing up liquid in the local fountain... ) it's probably better just to pay the small fine!

Mark Woolley

It wouldn't go well because they would allege, maybe successfully, that you intentionally violated the court order. The fact is that finger prints are not protected constitutionally, so trying to shield a finger print controlled device will be an uphill battle. On the other hand, encryption codes are generally protected, so that is the path you should really go if you don't want the government to find your data.

Robert Zeller

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