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It Puts the Finger on the Button

September 17th, 2013 - 3:29 pm

The iPhone 5S fingerprint sensor will protect you from snoopers — but will it protect you from Uncle Sam’s prying eyes? Read:

While there’s a great deal of discussion around the pros and cons of fingerprint authentication — from the hackability of the technique to the reliability of readers — no one’s focusing on the legal effects of moving from PINs to fingerprints.

Because the constitutional protection of the Fifth Amendment, which guarantees that “no person shall be compelled in any criminal case to be a witness against himself,” may not apply when it comes to biometric-based fingerprints (things that reflect who we are) as opposed to memory-based passwords and PINs (things we need to know and remember).

For the privilege to apply, however, the government must try to compel a person to make a “testimonial” statement that would tend to incriminate him or her. When a person has a valid privilege against self-incrimination, nobody — not even a judge — can force the witness to give that information to the government.

But a communication is “testimonial” only when it reveals the contents of your mind. We can’t invoke the privilege against self-incrimination to prevent the government from collecting biometrics like fingerprints, DNA samples, or voice exemplars. Why? Because the courts have decided that this evidence doesn’t reveal anything you know. It’s not testimonial.

Chilling.

If biometrics aren’t the very essence of who we are, of our right to be secure in our persons, then what the hell may we keep private?

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All Comments   (9)
All Comments   (9)
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At least with a password/phrase, in the event the Judge decides ha can compel you to give it up, you still have the option of saying 'hell no' for as long as you're willing to rot in jail on a contempt charge.
45 weeks ago
45 weeks ago Link To Comment
If biometrics aren’t the very essence of who we are, of our right to be secure in our persons, then what the hell may we keep private?

Whatever the NSA let you, i.e. nothing.
45 weeks ago
45 weeks ago Link To Comment
Uh.. I think there's a pretty large legal difference between the government being allowed to collect your fingerprints, and the government being allowed to use said fingerprints to unlock potentially incriminating data.

Either way, as I've said before, Apple isn't storing the print data on the phone. All they're doing is hashing it. If big brother were to somehow suck that value off the phone, all they'd have is a value that your fingerprint encrypts to using a very specific salt.

I'm having a pretty hard time finding the boogyman here.
45 weeks ago
45 weeks ago Link To Comment
The case in which the Fed could not force a suspect to cough up his password so they could look into his contact list ... his co-conspirators, his buddies, you know the bad folks on his Rolodex, and his encrypted mails.

The Fed can now stick his finger on his iPhone5S, read his list, track his buddies, unlock his mails that are encrypted with a hash of his fingerprint. The mails don't have to reside in his phone.

Of course the Fed will next make it illegal to encrypt your mails so their snoops can read them for fun. Problems solved. They are not doing anything that Google has not done for a decade.
45 weeks ago
45 weeks ago Link To Comment
Not buying it. Forcing someone to use their finger to unlock something is no different than forcing someone to use a key or a password. If they did, in fact, force someone, anything found would be inadmissible.

And with that said, if you're the paranoid sort you can use TouchID with a conventional password, or not use it at all.
45 weeks ago
45 weeks ago Link To Comment

Actually, the point of the linked article is that what you say is not true. Under current legal doctrine, your fingerprint is a physical token akin to a key. Not a piece of information like a password or your location last night. The government can require you to forfeit a key to facilitate a search. They cannot force you to divulge your whereabouts at a particular time.
45 weeks ago
45 weeks ago Link To Comment
They can only do that with a warrant, which makes the point somewhat moot-- it's no different than any other access method at that point.

And again: It's not like you have to use it.
45 weeks ago
45 weeks ago Link To Comment

There's a big difference between "come back when you've got a warrant" and "I take the 5th".
45 weeks ago
45 weeks ago Link To Comment
There's enough difference between a key and a fingerprint that I can see a test case challenging the doctrine, and potentially leading to its being amended.
45 weeks ago
45 weeks ago Link To Comment
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