In re: Application for Search Warrant, No. 17M801 (PACER dkt no. 1:17-mc-00081) (February 16, 2017)
A federal magistrate judge, David M. Weisman, in Illinois issued an opinion that, while approving the seizure of several devices, including an iPad or iPhone, denied the government’s request to compel their owner to supply his fingerprint in order to open them. The Court was troubled by the warrant’s use of what it termed “dated” boilerplate” language (anyone familiar with that?) that failed to discuss subjects like wireless internet service and careless encryption practices, leaving open the possibility that the activity that supported the request for the warrant did not rule out that someone other than the owner of the premises to be searched was using the internet services for illegal means, such as downloading child pornography. The warrant also lacked detailed information about other persons who might be living in the premises other than the subject of the search, the type of internet accessible hardware available at the premises, nor a comprehensive list of files the government expected to find— it did not even explain why the government expected to find Apple devices there. For these reasons, the government had not shown probable cause to compel any particular person to provide his or her fingerprint to open the devices. The court was not concerned with the privacy interests one has in a fingerprint— it found none— but rather the showing necessary to make a particular person provide the fingerprint. It also discussed the self-incrimination aspects of the government’s requests, finding that there are times that providing could be deemed testimonial. The case contains an excellent discussion of the Fourth and Fifth Amendment implications of compelling persons to open electronic devices with data gleaned from their bodies.
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