The judge says the warrant goes against the fourth and fifth amendments.
Last year, Forbes uncovered a warrant which requested that fingerprints should be obtained in order to unlock all electronic devices at a searched location. The warrant was approved by a magistrate judge, citing that giving up passwords, fingerprints or encryption keys didn’t infringe on a suspect’s fourth or fifth amendment rights (the right against unlawful seizure, and the right against self incrimination respectively). The warrant was backed up by citing cases as far back as 1910; not quite relevant for deciding the fate of modern electronic devices, which are essentially mobile data centers. In fact, even the most recent cited case in the warrant was 30 years old.
Now, a second, similar warrant has been uncovered, but this one has been rejected by the presiding judge. Judge M. David Weisman of the district court of Illinois has found that requiring to seize and unlock electronic devices for everyone at a search location would go against several constitutional amendments. The judge notes that while the courts do allow for seizing and unlocking devices belonging to suspects, they cannot do so for others who aren’t under investigation:
The issues presented in this warrant application are at the cross section of protections provided by the Fourth and Fifth Amendments. Essentially, the government seeks an order from this Court that would allow agents executing this warrant to force “persons at the Subject Premises” to apply their thumbprints and fingerprints to any Apple electronic device recovered at the premises. (See Attach. B, tT 12.) The request is neither limited to a particular person nor a particular device. And, as noted below, the request is made without any specific facts as to who is involved in the criminal conduct linked to the subject premises, or specific facts as to what particular Apple-branded encrypted device is being employed (if any).
The court’s complaints with the warrant don’t end there. Early on in the judge’s response, he cites the archaic approach to technology that is featured in the text, seemingly almost as dated as the cases it cites:
Despite the apparent seriousness of the offenses involved, the Court notes that some of the “boilerplate” background information included in the warrant is a bit dated, such as its explanation that “[t]he internet allows any computer to connect to another computer [so] [e]lectronic contact can be made to millions of computers around the world;” its explanation that a “Blackberry” is a common “Personal Digital Assistant” and its suggestion that the use of “cloud technology” is the exceptional way of transferring files and that transferring images to a computer by directly connecting a cable to a camera or other recording device is the expected means of data transfer.
A big problem with search warrants like this is that they set a precedent for the US government. Even though the warrant failed here, it will surely be granted in other places. The government seems to feel that it’s found a workaround for encryption: simply compromise fourth and fifth amendment rights with weak technology-oblivious arguments. Instead, how about better probable cause, fewer assumptions and a less lackadaisical approach to basic rights?