As technology advances, it’s becoming more and more difficult to draw a line on what feds can use for evidence against suspects as opposed to things that they can’t use. On January 10th, a California judge ruled that cops can’t force people to unlock their phones with face recognition or finger.
Before this ruling U.S. judges had decided that it was lawful for police to force people to unlock their mobile phones as long as it wasn’t by using a passcode. Devices such as Apples iPhone can be unlocked in numerous ways, including facial recognition, iris, or fingerprint scan. 
This order came from the U.S. District Court for the Northern District of California in the denial of a search warrant for an unspecified property in Oakland. The warrant was filed as part of a Facebook extortion investigation. The cops in charge of the investigation had some suspects in mind and desired to search their property. Their property also included their mobile phones- which they wanted to unlock using any biometrics the phone might have.
The judge agreed that the investigators had reasonable cause to search their property but did not have the right to force the suspects to unlock their phones.
Biometric Passwords are not Valid Passwords
Previously courts had ruled that biometric features were not “testimonial,” unlike their passcode counterparts. This was because a person would willingly and verbally have to give up their passcode, unlike with biometrics which can unlock a phone just by seeing the face of a person.
California Judge Westmore ruled that “technology is outpacing the law.”  She continued by saying that fingerprints and face scans were not the same as “physical evidence” when considered in a context where body features would be used to unlock a phone.
“If a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device,” Westmore wrote.
Think Outside the Box
There are ways to get data which the phone could provide without using the suspect’s phone. For instance, asking Facebook to provide communications from their Messanger app. This decision to stop allowing biometric unlocking of phones could be overturned by a district court judge though so if you have a phone that unlocks by biometrics, don’t get too excited. Maybe keep your phone locked with only a numeric passcode too.
- ^Brewster, Thomas. “Feds Can’t Force You To Unlock Your iPhone With Finger Or Face, Judge Rules.” Forbes, 14 Jan. 2019, www.forbes.com/sites/thomasbrewster/2019/01/14/feds-cant-force-you-to-unlock-your-iphone-with-finger-or-face-judge-rules/#71f03edc42b7. (go back ↩)
- ^(Forbes), Thomas Fox-Brewster. “Judge Says Facial Recognition Unlocks Not Allowed Under 4th and 5th.” 14 Jan. 2019, www.documentcloud.org/documents/5684083-Judge-Says-Facial-Recognition-Unlocks-Not.html. (go back ↩)