By Ken Winterbottom – Edited by Yixuan Long
Virginia v. Baust, No. CR14-1439 (Va. Cir. Oct. 28, 2014) Slip Opinion hosted by Scribd.
A Virginia state trial court held that a suspect “cannot be compelled [by the police] to produce his passcode to access his smartphone but he can be compelled to produce his fingerprint to do the same.” Id. at 4. The analysis turned on whether a passcode or a fingerprint is “testimonial communication.” Id. at 2.
Judge Frucci ruled that phone passwords were entitled to protection under the Fifth Amendment’s promise that no person “shall be compelled in any criminal case to be a witness against himself.” Id. He stressed that the password existed only in the defendant’s mind, and thus compelling the defendant to provide a passcode constituted a testimonial communication. The Fifth Amendment protects against such compulsion.
On the other hand, Judge Frucci concluded that smartphone fingerprint protection did not qualify for the Fifth Amendment privilege. He noted that producing a fingerprint did not require the communication of knowledge, but was rather analogous to being ordered to produce a DNA sample or a key, which is constitutionally permissible. Judge Frucci also cited a 1967 Supreme Court case, United States v. Wade, 388 U.S. 218 (1967), for the proposition that the Fifth Amendment “offers no protection against compulsion to submit to fingerprinting.” Baust, No. CR14-1439, at 3 (Va. Cir. Oct. 28, 2014).
Although some commentators were unsurprised by the decision, others worried about its privacy implications. The Virginian-Pilot and The Hill provide further commentary.
The defendant in the case, David Charles Baust, is a Virginia Beach paramedic charged with the strangulation of a woman in his home. Authorities believe the assault may have been captured on film, as Baust had a recording device hooked up in the room where the strangulation allegedly took place. The device transmits video recording directly to Baust’s smartphone, which the police seized pursuant to a search warrant several days after the incident. Because Baust evidently refused to unlock his phone so that the police could look for the incriminating video evidence, the prosecution filed a motion to compel him to do so.
The court reasoned that the success of the motion turned on whether a passcode or a fingerprint was “testimonial communication” under the Supreme Court’s precedents, concluding that the former was and the latter was not. Judge Frucci therefore granted the state’s motion as to the fingerprints, but not as to the password. Baust’s attorney expressed uncertainty as to whether this would enable the police to unlock the phone, which may require both a fingerprint and a password to unlock once it has been turned off. In that case, the prosecution says it will appeal the decision.
The decision represents a setback for digital privacy enthusiasts in the wake of a recent victory: this summer’s Supreme Court ruling that the police may not search cell phones without a warrant. It was nevertheless an unsurprising result: Mashable reports that one attorney described the ruling as “exactly what we thought it would happen when Apple announced its fingerprint ID.” Smartphone fingerprint scanners, including the TouchID sensor built into newer iPhone models, have been described as potential security concerns ever since they were announced. Apple does include some additional protections, Ars Technica reports, such as requiring a password if the phone has been inactive for too long.
If Baust’s phone uses TouchID, it is likely that a password will be therefore required, given the delay between the seizure of the phone and the court’s decision. Should the phone remain locked despite the police’s ability to compel fingerprinting, the state will have to follow through on its plan to appeal the decision if it wants to access the video footage.