To get at data, prints prized
Feds now seek fingerprints while cracking phones
LOSANGELES— As the world watched the FBI spar with Apple this winter in an attempt to hack into a San Bernardino, Calif., shooter’s iPhone, federal officials were waging a different encryption battle in a Los Angeles courtroom.
There, authorities obtained a search warrant compelling the girlfriend of an alleged Armenian gang member to press her finger against an iPhone that had been seized from a Glendale home. The phone contained Apple’s fingerprint identification system for unlocking, and prosecutors wanted access to the data inside it.
It marked a rare time that prosecutors have demanded a person provide a fingerprint to open a computer, but experts expect such cases to become more common as cracking digital security becomes a larger part of law enforcement work.
The U.S. Supreme Court has held that police can search phones with a valid warrant and compel a person in custody to provide physical evidence such as fingerprints without a judge’s permission.
But some legal experts say there should be ahigher bar for biometric data because providing a fingerprint to open a digital device gives the state access to a vast trove of personal information and could be a form of selfincrimination.
“It isn’t about fingerprints and the biometric readers,” said Susan Brenner, a law professor at the University of Dayton who studies the nexus of digital technology and criminal law, but rather, “the contents of that phone, much of which will be about her, and a lot of that could be incriminating.”
In the Glendale case, the FBI wanted the fingerprint of Paytsar Bkhchadzhyan, a 29-year-old woman, who pleaded no contest to a felony count of identity theft.
She was sentenced in that case on Feb. 25. Jail records and court documents show that about 45 minutes after Bkhchadzhyan was taken into custody, U.S. Magistrate Judge Alicia Rosenberg — sitting in a federal courtroom 17 miles away — signed off on thewarrant for the defendant to press her finger on the phone.
By 1 p.m., an FBI agent took her print, according to court papers.
Why authorities wanted Bkhchadzhyan to unlock the phone is unclear.
The phone was seized from a residence linked to Sevak Mesrobian, who according to a probation report was Bkhchadzhyan’s boyfriend.
Even with the limited outlines of the inquiry, Brenner said the act of compelling a person in custody to press her finger against a phone breached the Fifth Amendment’s protection against self-incrimination. It forced Bkhchadzhyan to testify because by unlocking the phone, she authenticated its contents.
“By showing you opened the phone, you showed that you have control over it,” Brenner said. But Albert Gidari, the director of privacy at Stanford Law School’s Center for Internet and Society, said the action might not violate the Fifth Amendment.
“‘Put your finger here’ is not testimonial or self-incriminating,” he said.