In the latest skirmish over privacy in the cellphone age, a federal judge in Chicago has rejected a law enforcement request to force potential targets in an ongoing investigation to provide fingerprints to unlock any iPhones or other Apple devices.
The order by U.S. Magistrate Judge David Weisman concerned a request for a warrant to search a residence where investigators believed someone was using the internet to traffic images of child pornography, court records show.
The prosecution filing seeking the search warrant on the FBI's behalf remains under seal, but the judge's opinion said the government requested "the authority to compel any individual who is present at the subject premises at the time of the search" to provide a fingerprint or thumbprint needed to unlock an Apple device.
Weisman, a former federal prosecutor and FBI agent, wrote in his 14-page opinion last month that the government hadn't presented enough facts in its application that would justify such sweeping "intrusions," including any specific information about those who might be living at the residence or their connection to the child pornography investigation.
He also called out prosecutors over what he called the dated boilerplate language often seen in search warrant affidavits dealing with technological issues, from referring to a Blackberry as a "Personal Digital Assistant" to suggesting that most people still use cables to download information.
Weisman's ruling comes a year after the high-profile battle between Apple and the FBI over the encrypted iPhone used by one of the San Bernardino, Calif., terrorist attackers who killed 14 people and seriously wounded 22 others in 2015.
That dispute was resolved after the FBI was able to hack into the phone without Apple's help. But experts say the debate over where to draw the line between privacy and investigative interests has lingered, particularly as law enforcement agencies across the country are searching to bypass the relatively new technology of fingerprint readers and other encryption built into many cellphones.
Although Weisman's ruling was narrow in scope, it provided an important shot across the bow to federal agencies looking for sweeping powers to search individuals' cellphones without probable cause, according to Jennifer Lynch, a senior staff attorney at the Electronic Frontier Foundation, a nonprofit digital rights group.
"This is a very new area of the law. We've only had the ability to unlock our phones with our fingerprints for a few years now," Lynch said. "And so in this situation, there's nobody on the other side to say to the court this is outrageous and there are some cases to back us up."
In a landmark 2014 decision, the U.S. Supreme Court ruled that police must obtain a warrant before they can search an arrestee's phone.
The court has previously held that physical evidence like fingerprints can be collected without judicial approval. But some legal experts say there should be a higher legal threshold when it comes to unlocking a smartphone with a fingerprint because it potentially gives the government access to a trove of personal information.
David Shapiro, an attorney with Northwestern University's MacArthur Justice Center, said Weisman was correct in putting the brakes on a "remarkably intrusive search."
"A cellphone is almost a record of your mind and your life," Shapiro said. "It reveals your thoughts. It reveals who your friends are. It reveals where you go, where you spend your time. It reveals what books you buy on Amazon."
A spokesman for the U.S. attorney's office in Chicago declined to comment.
The case was just one of many across the country where authorities have sought access to a locked or encrypted smartphone as part of an ongoing criminal investigation. An Apple spokesman has previously said the company receives thousands of requests every year and complies with about 80 percent of them.
But the issue exploded in February 2016 when Apple publicly refused to comply with the FBI's request that the company help access an iPhone used by San Bernardino gunman Syed Rizwan Farook. The FBI wanted Apple to create a program specifically for that particular phone to help the bureau review the data on it. Apple refused, saying to require the company to build a "backdoor" into its devices would set a terrible precedent.
In fighting the request, Apple released details of a dozen similar instances in which the federal government sought data from Apple devices by invoking the All Writs Act of 1789.
Three of those requests were filed in Illinois. In one case, the FBI sought — and a judge granted — permission to access an iPhone belonging to Pethinaidu and Parameswari Veluchamy, a suburban couple later charged with bankruptcy and passport fraud. Records show Apple complied with the judge's order in that case, but the FBI was unable to access any data because the phone's data had been encrypted.
The issue is not unique to federal court. In Cook County criminal court, prosecutors have asked a judge to force an alleged serial rapist to unlock his iPhone. The defendant, tanning salon owner Marc Winner, allegedly exchanged at least two text messages with one of his victims implicating himself in the attack.
"Are you ok?" Winner texted in one message, according to screen shots of the texts taken by the alleged victim.
"I'm away from you," the woman replied. "Of course I'm okay."
"Don't talk to me agaon," she texted soon after. "Your a rapist."
Winner has since been charged with three other sexual assaults of women who were either employees or customers at his salons. But two years after his arrest, the contents of his phone remain locked as both sides await a ruling. Winner has pleaded not guilty to all charges.
In his recent decision, Weisman authorized agents to search the premises and remove computers and electronic storage devices found during the raid — the more traditional requests made in search warrants.
Weisman's ruling on the fingerprint issue came only after he took the unusual step of asking the U.S. attorney's office to submit a memorandum detailing its position. The judge then presented a draft of his order to prosecutors for their "consideration" before publishing it with some "minor edits," according to his ruling.
Weisman acknowledged that given the still-developing nature of the child pornography investigation, it wasn't surprising that some information was missing from the government's application for a search warrant. He said any evidence garnered from the search could be used to apply for additional warrants in the future.
"We simply are not there yet," Weisman said.
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