Jul 042020
 July 4, 2020  Posted by  Court, Surveillance, U.S.

Maeve Allsup reports:

The government may compel individuals to unlock devices using biometrics during the execution of a search warrant without violating the individual’s Fourth or Fifth Amendment rights, a federal court in Kentucky ruled Thursday.

The federal government sought to obtain a search warrant to seize evidence on cellphones, computers and other electronic devices found on the premises that contain evidence of, or were the instruments of, alleged crime. That warrant also sought authorization to force all individuals present to provide biometrics to unlock devices.

Read more on Bloomberg Law.  That last sentence above is what really caught my eye.

The opinion joins other opinions that the government can compel biometric access when executing a search warrant.  What the government can’t do — at least not in the Eastern District of Kentucky — is compel biometric access to all devices by all individuals who might just happen to be on the premises or in the area where there is evidence of a crime or other devices that might be involved in an alleged crime.   As Magistrate Judge Stinnett framed the questions the court grappled with this way:

 First, is capturing the physical characteristics of an individual, such as a fingerprint, a search? If so, then second, what standard or burden must the government meet to capture such physical attributes of an individual incident to a search warrant?

The first question was easily answered that yes, capturing biometric characteristics is a search. Then how does the Fourth Amendment apply to searching the devices that may belong to non-targets of a warrant?  The court applies the reasonable suspicion standard and concluded that

 the United States may only compel individuals present during warrant execution to provide biometric markers to unlock electronic devices where the United States has reasonable suspicion that such an individual has committed a criminal act that is the subject matter of the warrant, and reasonable suspicion that the individual’s biometrics will unlock the device.

The case is Favorite In re Search Warrant No. 5165, 2020 BL 246200, E.D. Ky., No. 5:20-MJ-5165, 7/2/20.

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