iPhone 5s, TouchID, and the 5th Amendment

Discussion in 'Politics, Religion, Social Issues' started by bradl, Feb 28, 2014.

  1. bradl macrumors 68040

    bradl

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    #1
    9to5Mac posted this roughly 7 hours ago:

    http://9to5mac.com/2014/02/28/south...one-to-apple-after-failing-to-crack-passcode/

    While we have already had cases in the USA where precedent has been set on revealing or not revealing your passwords to have evidence you have used against you, in violation of your 5th Amendment right, the issue with relation to TouchID hasn't. While getting the court order isn't illegal, could either them forcing you (via that court order) to use your fingerprint on your iPhone 5s to get access to evidence they want to use against you be a violation of that 5th Amendment right? Furthermore, if they already have your print (from the booking process when you are processed), could using that print with TouchID to get access to your device and use evidence found on your device against you be a violation of that 5th Amendment right?

    If not to both questions, TouchID may work well for security, but may provide little assistance in maintaining certain rights granted by the US Constitution.

    Thoughts?

    BL.
     
  2. ugahairydawgs macrumors 68020

    ugahairydawgs

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    Assuming that a court order is used to gain access to the finger print data, how would gaining access to the phone via TouchID be any different than them using a warrant to search your home and the computers in it for evidence?
     
  3. iJohnHenry macrumors P6

    iJohnHenry

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    Self-incrimination.

    Or you could send him to Gitmo.
     
  4. bradl thread starter macrumors 68040

    bradl

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    This was exactly what I was getting at. Could getting the court order to supply your fingerprint to a device that the prosecution wants to collect evidence on you violate your right against testifying against yourself? The court order would be that means of compelling one to testify.

    It's one thing to get a warrant to search your home or your computer, or even your phone. It's another thing altogether to get a warrant to compel you to supplying your password/passcode to get to evidence that may incriminate you. Supplying a fingerprint may do the same.

    BL.
     
  5. Gutwrench macrumors 65816

    Gutwrench

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    The court can order a person to provide a DNA sample or even blood and it can be compelled as long as it's done in a medically approved manner so my guess is it wouldn't be a violation of the 5th.
     
  6. bradl thread starter macrumors 68040

    bradl

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    But can it be used to gain access to data that could be used against you? You would basically be providing the means to incriminate yourself, which is what the 5th Amendment is supposed to protect you from.

    BL.
     
  7. iJohnHenry macrumors P6

    iJohnHenry

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    Our friend fails to distinguish the difference of corroborating other evidence and going on a fishing expedition.
     
  8. Gutwrench macrumors 65816

    Gutwrench

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    But isn't the Fourth our protection from fishing expeditions?
     
  9. iJohnHenry macrumors P6

    iJohnHenry

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    Yes, and it should be applied for finger-prints taken for one reason being used for another.

    If the court orders Apple to unlock the phone, without using the reader, well, we will cross that bridge when we come to it.

    But I don't see a foreign government overriding the Constitution any time soon.
     
  10. bradl thread starter macrumors 68040

    bradl

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    #10
    But that's the difference as well. This is happening in Cape Town, not the US. And as such, I'm not going to call myself anywhere near familiar with laws in South Africa. I do know that The World did report that, similar to the O.J. Simpson trial, the Pistorius trial is going to be televised from start to finish, on its own dedicated channel, starting on Monday.

    I can't speculate on what Apple would do in this case (in fact, I won't). That is why I brought it up here for discussion, should such a thing happen in the US.

    BL.
     
  11. iJohnHenry macrumors P6

    iJohnHenry

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    Insofar as I know, Apple is bound by the laws applicable in the U.S., not South Africa.

    Yes, they could play hard-ball with Apple's future in S.A., but I doubt it will come to that.

    Let them make their case, or fold.

    Off-the-record, I think this guy is not a nice person. But Law does not consider that when reaching a determination.
     
  12. pdjudd macrumors 601

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    Indeed. Unless there is a court order directing Apple to do something, Apple can tell everyone to pound sand. Heck, they aren’t even asking a court (likely the court isn’t going to entertain such a motion regarding a foreign case) - they are asking the FBI to authorize Apple as if the FBI has to be the one to do that.

    So far, Apple hasn’t been asked to provide anything and until they do, we can’t really say much.

    My overall guess though that Apple wouldn’t be involved at all. Courts can and have in the past compelled people to given up personal information such as fingerprints and DNA which can be incriminating. Not only that, courts can issue search warrants to a persons private space (such as their house) with a warrant. Often times these warrants are issued so that the police can gather evidence. I take that to mean that if the court can compel a finger print unlock with a very specific court order. After all, they already have a legal access to the phone via a court order.

    Apple? Haven’t they claimed that even they don’t have access to touch ID information? If so, this isn’t something they need to be involved with. At that point, its no different from a standard lock on a cell phone. The fingerprint makes it easier, but its not required. They just have to break encryption, which Apple can fight on different grounds.
     
  13. bradl thread starter macrumors 68040

    bradl

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    True however, Apple hasn't been asked to do this yet.. in the USA. They have been asked by the authorities in South Africa to do this. If Apple doesn't (read: tell them to go pound sand), then we have a bigger issue to deal with on our hands.

    It isn't Apple I'm worried about here. It is the fact that if this happens in the US, could supplying your fingerprint as means to unlock your phone be in violation of your 5th Amendment right of protection against incrimination? Because this is what the authorities want in South Africa. They would like a way around asking Pistorius to provide his print to unlock the phone.

    Furthermore, with them having his prints already (from being booked into jail), could they print a finger (3D print), apply his print to it and use that to unlock the phone? (I don't know, just thinking out loud.)

    BL.
     
  14. sjinsjca macrumors 68000

    sjinsjca

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    #14
    There is no Fifth Amendment protection where biometrics is concerned.

    http://unvexed.blogspot.com/2013/09/the-cryptogasm-needs-dose-of-perspective.html?m=1
     
  15. pdjudd macrumors 601

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    #15
    . No, the SA government has asked the FBI to ask Apple. As I pointed out, Apple doesn’t have anything to do with yet. I was speculating about Apple possibly getting involved, but I am not implying that they are.


    We don’t know really. I speculate how it is possible, since the government can compel you to provide biological evidence that could incriminate you and they can get warrants to access property that is locked. I argue that Touch ID is largely irrelevant sine authorities can attempt to break the passcode or compel Apple to do it. It should be in the realm of compelling to provide passwords. I submit there is nothing special about Touch ID that should differentiate it from a standard password.
    I am sure they do want their job be made easier. They can ask all they want. 5th Amendment rights don’t exactly mean much since this case is solely in SA courts. Legally speaking, US law has no bearing on this case other than evidence gathering according to SA law and diplomacy. And as it has been noted, Apple can’t help anybody with touch ID - only in breaking the passcode. Apple can’t force Oscar to give up his fingerprints.

    I believe it has been shown that it is possible to fool a fingerprint sensor. I suppose that is a way to get around something that they already have a warrant to get. It would also get around 5th Amendment concerns unless you (g) want to argue that the police have no rights to your prints.
     
  16. vrDrew macrumors 65816

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    The venue for Pistorius' lawyers to contest this is in South African court. Not the US.

    The South African Constitution has a Section 35, which covers rights of the accused, right to a fair trial, remain silent, and not to incriminate oneself. I would hesitate, however, to directly equate the provisions of the SA Constitution with those of the US. A lot depends on how Courts in various countries interpret the wording of Constitutions.

    The self-incrimination limitation is not absolute: Suspected drunk drivers, for instance, in both this country and just about every other Jurisdiction, can be compelled to provide blood or other biological samples.

    My guess is that Pistorius phone is, at best, a sideshow. Unless he recorded a note to himself on how he was planning on killing his girlfriend, most of what the cops may - or may not - find is circumstantial at best. He was looking at porn? So what. 95% of the men in the world accessed porn in the last week or so - and almost none of them ended up shooting anyone.
     
  17. ElectronGuru macrumors 65816

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    #17
    My understanding of the 5th is that it protects information inside your head. So that if the iPhone included an accessory that reads your mind, you could not be compelled to allow such a scan. This case is more like a diary, he's already 'exported' the information. It's just a question of gaining access.

    A phone with info should be no different than a public (deposit box) or private safe. These have keys, codes, and fingerprint scanners. Can court orders compel cooperation to open them? And in the case of a third party, apple would be no different than a safe company being asked to open one of its products with paper or other evidence inside.
     
  18. pdjudd, Mar 6, 2014
    Last edited: Mar 6, 2014

    pdjudd macrumors 601

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    #18
    Yes. The information on Mr. Pistorius iPhone is not solely exclusive to his mind - it’s been transcribed on something outside of his mind and as such, is subject to the necessary warrants. At that point the data is essentially in the policies custody. And they can compel access since it’s a physical device. Now with a passcode that might be exempt if he is the only holder, but his fingerprint isn’t. But if the courts have a legal warrant they can demand access just like they can demand access to a locked room in your house or a locked safe.

    Indeed. The iPhone 5s has 2 security locks that get access to the same data*. The first - the physical code tends to be really tough to crack (if the OP is to be believed, the SA prosecutors can’t do it). The other key is easy - it’s your biometrics. Something that (at least here) is just like a key to a door, it’s physical and can be compelled. And unfortunately, it’s very touch to loose. If the court can compel you to provide your prints and DNA (with a warrant), they can compel you to unlock something that isn’t solely in your brain. That is assuming that they have a valid warrant. If Mr. Pistorius’ attorneys want to question that warrant, thats the business of the SA court.

    If you want to protect your 5th Amendment rights your gong to need to restrict your evidence to things that exist in your mind and never tell anybody, never describe it, and don’t leave physical evidence.

    *those keys are an OR situation, not an AND. If the keys were an AND, it would just make getting the data harder to get, but in my mind still doesn’t change the 5th amendment rights since the data has already been transcribed on the device and is subject to brute force access. Saying “i forgot the password” doesn’t suddenly protect the content any more under the 5th amendment than before (assuming said passcode can be overridden by the manufacturer - otherwise it’s just permanently blocked)
     
  19. FreeState macrumors 68000

    FreeState

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    #19
    That and it will only work if you have the order within 48 hours of the phone last being unlocked. Highly unlikely if you ask me.


    http://support.apple.com/kb/HT5949?viewlocale=en_US&locale=en_US

     
  20. Sydde macrumors 68020

    Sydde

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    Apart from the privacy issue, they want to use looking-at-porn as indicating that the relationship was failing? I sure hope they have a lot more to go on, because that is some darn weak sauce.
     
  21. Gutwrench macrumors 65816

    Gutwrench

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    I understood the op to be asking a hypothetical question as if the situation occurred in the United States.

    The court can order a person a turn over a key to a locked safe and not violate the Fifth Amendment. So therefore I can see a court not viewing a fingerprint any different than a key. And as someone eluded to earlier a fingerprint does not reveal the contents of a person's mind.

    However in this age of technology perhaps there is some room here to claim a Fifth Amendment protection if forced to reveal the pass code of a phone or computer which is stored within a suspect's mind. I believe there is a case where a suspect (defendant) won a 5th Amendment challenge in court when forced to disclose the decryption key to his hard-drive.
     
  22. bradl thread starter macrumors 68040

    bradl

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    Thank you. This is exactly what I was thinking and was trying to do: create the hypothetical as if this was asked in a US court, because at some point, it will be an issue in the US.

    This also leads me to believe, especially if a case like this shows up in the US courts, that TouchID would not be as secure (read: survives a disclosure challenge) as a passcode or passphrase.. The case above with the 5th Amendment shows that.

    BL.
     
  23. Sydde macrumors 68020

    Sydde

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    As far as I know, the security on an iPhone is just a locked door, in that the content inside is not encrypted. The flash storage appears to be a discreet module that is of a rather standard manufacture (as one would expect from Apple). Thus, it should not be that difficult for them to open up the phone, pull out the storage, and find a journeyman nerd who can extract its content. Obviously it is much easier from the iPhone itself, without dismembering it, but it should not be that huge a task to look at the drive by itself.
     

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