Give ‘Em the Finger
The Use of Biometrics in Court Cases
Biometrics -- distinctive and quantifiable traits utilized for identifying an individual -- have been used in the form of fingerprint locks on smartphones since 2011. However, it wasn’t until 2013, when the iPhone’s Touch ID was released on the 5S, that the technology gained popular momentum.
Using one’s fingerprints to lock smartphones or sensitive content is appealing because everyone’s fingerprints are unique and therefore believed to be a personalized passcode that cannot be hacked. It also saves the user from forgetting the password or having to type anything on the screen. However, in May of 2016, Russell Brandom, contributor to The Verge, posted an article describing many of the pitfalls of this technology.
One of the biggest problems with using fingerprint biometrics is that vast databases store fingerprint information for government and law enforcement agencies, and not just on criminals. As Brandom writes:
Homeland Security policy is to collect fingerprints from non-US citizens between the age of 14 and 79 as they enter the country, along with a growing number of fingerprints taken from undocumented immigrants apprehended by Customs and Border Patrol. The FBI maintains a separate IAFIS database with over 100 million fingerprint records, including 34 million "civil prints" that are not tied to a criminal file.
By using information from these databases a mold of an individual’s fingerprints can be created with ease. However, using a left behind print, dental cast and mold the same thing can be accomplished in an unofficial manner. Perhaps the most condemning aspect of using biometrics is that they are permanent. Unlike a password that can be changed if it’s hacked, once a theft of biometric data has happened there is no option for such a recourse.
Recently, in the case of The State of Minnesota v. Matthew Vaughn Diamond, a legal precedent was set by the Court of Appeals. The case originally began with a burglary in October of 2014, after which Diamond’s phone was seized but not able to be unlocked. He was eventually ordered to provide his fingerprint to unlock his phone and the evidence gathered resulted in a 51-month sentence.
In the appeal case, which was decided on in January of this year, the court ruled that such an order was not a violation of the defendant’s constitutional rights, citing that police have the authority to gather blood, hair, urine, handwriting and fingerprint samples even against that person’s wishes.
The Judge, Tracy Smith, wrote that the order to provide a fingerprint for the purposes of unlocking a personal device does not violate a person’s privilege against self-incrimination, nor is doing so comparable to being made to testify against oneself in court. The differentiation can be seen clearly when the former is thought of as a confirmation of who you are, and the latter as a confirmation of what you know.
Surprisingly, U.S. Magistrate Judge David Weisman, a federal judge in Chicago, denied the FBI’s request for a warrant mandating the use of suspect’s fingerprints to unlock their smart devices. While the case is actually concerning charges related to child pornography, evidence suspected of being on the cell phones could help convict.
In an article from The Chicago Tribune, the ruling was described as “narrow in scope” but did provide an important blow to “ federal agencies looking for sweeping powers to search individuals' cellphones without probable cause,” as stated by Jennifer Lynch, a senior staff attorney at the nonprofit digital rights group Electronic Frontier Foundation.
As biometric technologies become more and more ubiquitous the issue spreads from those involved with illicit activities to law-abiding citizens by increasing the amount and types of data samples that can be collected by law enforcement without express permission from a judge.