Ride the Lightning

VA Court Rules Police Can Require Smartphone Fingerprint, Not Passcode

November 3, 2014

The Virginian-Pilot reported on October 30th that Virginia Beach Circuit Court Judge Steven Frucci had ruled that a criminal defendant can be compelled to give up his fingerprint, but not his passcode, to allow police to open and search his cellphone.

The case involved David Baust, an Emergency Medical Services captain charged in February with trying to strangle his girlfriend.

Prosecutors said video equipment in Baust's bedroom may have recorded the couple's fight and, if so, the video could be on his cellphone. They asked a judge to force Baust to unlock his phone, but Baust's attorney, James Broccoletti, argued that passcodes are protected by the Fifth Amendment, which prohibits forced self-incrimination.

Frucci ruled that giving police a fingerprint is like providing a DNA or handwriting sample or an actual key, which the law permits. But a passcode requires the defendant to divulge knowledge, which is protected by law.

Prosecutors are deciding whether to appeal. No one claimed to know whether the defendant's phone can be opened with just a fingerprint – prosecutors are having a detective look into it. Broccoletti said the phone could be encrypted twice – with both a fingerprint and a passcode. If so, it would remain locked under Frucci's ruling.

Unsurprisingly, Lifehacker promptly popped up with this advice:

"If you're detained, reset your iOS device (hold the Home and Power button for a few seconds) before you have to hand it over. Touch ID doesn't work on the first boot."

E-mail:    Phone: 703-359-0700
Digital Forensics/Information Security/Information Technology
http://www.senseient.com
http://twitter.com/sharonnelsonesq