McKenna on KIRO: Can gov’t force fingerprint to unlock phone?

KIRO 97.3 host Dave Ross asked Rob about a thorny case out of Minnesota, where a judge ordered a burglary suspect to provide his fingerprint to unlock his cell phone. The man appealed, arguing that doing so violated his 5th Amendment right against self-incrimination. A Minnesota appeals court ruled against him, saying that providing the fingerprint “is no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing.”

Dave Ross: “So if somebody were to ask me to turn over all my crystal meth, my response should be, ‘You go try to find it, buddy.’”

Rob McKenna: “’You’ll never find it!’ That could be your response.”

Dave Ross: “And that’s why I could never be a very good criminal.”

Rob McKenna: “But this issue of passcodes and whether or not it violates the 5th Amendment to provide your passcode is still up in the air a little bit. The legal scholars are still debating it, judges are still wrestling with it.

“It just shows how challenging all these issues are in the digital age, when we’re trying to apply laws, statues, and constitutional principles that were written a long time ago, before people were thinking about the idea of digital evidence.”

Listen here

  • derylmccarty

    hum…I would have thought that the court’s USE of the information gleaned from private papers (cell phone memories whether cloud or on device) is the violation of the 5th Amendment, not access. If I were overheard from the next booth in a restaurant talking about Joe Jones and crystal meth (or talking to myself as I wrote my diary in code in the same booth 200 years ago) the cops can get a warrant to break the diary code or use my finger print in response to the warrant. But if they discover on the phone (or diary) that the Joe Jones you were whispering to is your 2 month old nephew (likely innocent of meth charges) but that Sam Smith is the guy your were buying your meth from, that latter information would be inadmissible if it weren’t in the warrant. If cops discover that Joe Jones is the meth guy you were dealing with, then I would not think the 5th Amendment is in play but the 4th – the underlying warrant. Did the judge have reasonable cause to issue it? Talking in a restaurant booth – whether to yourself if you are writing your in your coded diary or on your cell phone – there can be NO expectation of privacy. Even sitting in the bathroom at the same restaurant I would have an expectation of privacy in my bodily functions but not from the guy in the next stall overhearing a cell phone conversation. Oh well, there is probably a 1000 ways to analyze this dilemma, but how did we answer the question 200 years ago with coded diaries?