Cops Could Force Non-Suspects to Unlock Phones

John Lister's picture

The Department of Justice has argued that police have the right to force anyone in a searched property to unlock phones with a fingerprint lock. Lawyers disputing the argument say that would go beyond the reasonable scope of a search warrant.

It's the latest development in the ongoing development of privacy and search laws as technology evolves. For example, previous cases have concluded that police can't force somebody to provide a passcode or password to unlock a phone, because it would breach the Fifth Amendment's measures on self-incrimination. However, law enforcement officials with a valid search warrant do have the right to seize and use a piece of paper with the passcode written down.

Biometric Locks Covered By Fingerprinting Rules

More controversially, courts have ruled that because police already have the right to force suspects to provide fingerprints, they can insist the finger be placed on a phone to unlock it rather than merely pressed in to ink (for the purpose of police fingerprinting records). However, that only applies to named, specific suspects, often with the backing of a specific court order.

The new case has just been uncovered by Forbes and is detailed in a court filing in California from this past May. Not all of the documents have been unsealed so its unclear exactly how the case played out. (Source:

All Fingerprint Locked Handsets Covered By Claim

The documents show that the Department of Justice not only asked a court to give police permission to enter and search a property, but also that they have: "authorization to depress the fingerprints and thumbprints of every person who is located at the SUBJECT PREMISES during the execution of the search and who is reasonably believed by law enforcement to be the user of a fingerprint sensor-enabled device that is located at the SUBJECT PREMISES and falls within the scope of the warrant." (Source:

That's raised concern with civil rights groups and lawyers who argue that it could mean police forcing people on their premises to unlock their phone, even though they aren't specifically named suspects and police don't have probable cause to say they have committed any offense.

What's Your Opinion?

Should search rules be different for phones protected by fingerprints and those protected by a passcode? Should a search warrant for a property cover the phones of anyone on the premises or just those of names suspects? How much evidence of potential wrongdoing should police provide before they can access a person's smartphone?

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Dennis Faas's picture

It seems there is always a legal loophole to certain things and this is certainly a good example. I can see cops staking out a place and busting everyone in the premises just to go snooping through everyone's phone. That seems a bit overkill on privacy.

On the other hand, if police are using their resources to bust people this way (which requires a lot of resources if you think about it) - one could also argue that such a bust should only be for a compelling reason (and only because they don't have enough resources to go about doing this every day). Therefore, anyone that happens to be in the premises is also likely connected to said suspects, which means they should be searched as well. That last part is still a bit overkill but does have a tiny bit of merit to it, if you consider resources involved in making the bust in the first place.

matt_2058's picture

This is VERY bad.

First, non-suspects are just that...not suspected. The argument that a non-suspect on the premises is guilty by association is faulty. Anyone of value should be on the warrant. And if LE doesn't know if person 'a' is suspect, then it means person'a' is not. OTHERWISE person 'a' would be on their radar.

So, a non-suspect is not a suspect. And outside of this particular mission.

Suppose you are having a beer at a local hangout. Or maybe putting gas at the corner store. The police raid it for underage drinking or drugs or whatever. You, the customer, is a non-suspect (unless of course you are buying for a minor). The warrant should have the establishment, employees, and suspects on their paperwork. You would not be suspected of any wrongdoing. This interpretation would give LE the opportunity to make you swipe your finger on your phone and allow LE to treat it as evidence.

The amount of wrong-doing that can occur is monumental. Business people, lawyers, politicians....everyone..... would be susceptible to divulging contacts, clients, plans and operations docs, patients, etc. to anyone present and LE. You don't have to be a conspiracy fan to see the potential here.

This would make alot of sense if you substitute 'combatant' for 'suspect' to see who is a valid target and who is not. Combatants are fair game. Non-combatants are off limits.

guitardogg's picture

Unless they have a warrant with your name on it, or they actually arrest you, your phone should be off limits, period. I the face of diminishing privacy, this just needs to stop!

jomar's picture

Stop carrying your cellphone around with you. It really looks asinine seeing a person with their face glued to their cellphone. I mean really, get a life. Make it silent, lock it and hide it for later reference.

stooobeee's picture

I recall, as a student growing up under a Nobel Prize-winning Physics nominee refusing to accept the nomination, his explanation why: "If you are standing on a hill overlooking a brand new city, you have two options. You can simply run down the hill and experience the city or you can wait until the whole world catches up so that it can go with you." Half one's life would be lost waiting. We are extremely slow "getting it." In fact we don't get it until it is too late. People are forever giving away small pieces of themselves because individually those bits and pieces are too tiny to appear significant. But after awhile, we hand over so much, we have lost half of what we had. Worse, there is no way to get it back. It's gone forever.

We have given up much of our freedom doing this, and trusting and believing that the other guy knows better than we how to handle what was once ours, we become ultimately a people without anything. Freedom and security must be balanced; one cannot be exchanged for the other---no matter how long that exchange takes---or you have neither.

steve1's picture

This is such a clear violation of the fifth amendment. You can't be forced to produce your password and you can't be forced to give your DNA sample, so why does the DOJ think you can be forced to unlock your phone? In all cases you are testifying against yourself.

Note to Apple- easy fix, use two fingers. One unlocks the phone, and the other destroys the contents. The cops would never know which finger to force you to use.