On January 19, 2019, federal Magistrate Judge Kandis Westmore of the Northern District of California denied the Government’s application for a search warrant that sought:

  1. “all digital devices” present at a California residence; (Order at 3), and
  2. “any individual present at the time of the search to press a finger (including thumb) or utilize other biometric features…for the purposes of unlocking the digital devices found in order to permit a search of the contents,” (Order at 1).

The request for the “use of biometrics” was stunning. Magistrate Judge Westmore denied the Government’s initial request, but invited the Government to submit a new search warrant. A day later when the Government submitted an amended application, it omitted the request to use biometrics. The court granted that amended application. Since the Government’s application named only two suspects in its affidavit, the Government’s request to compel any other individual present at the time of the execution of the search warrant to unlock their digital device(s) was too expansive.

Judge Westmore also determined the Government’s request to require all individuals present to provide their “biometrics” was not justified. Order at 2. “Courts that have addressed the passcode issue have found that a passcode cannot be compelled under the Fifth Amendment, because the act of communicating the passcode is testimonial.” Order at 4. Judge Westmore explained the important differences between a suspect submitting his fingerprints and DNA, and the same suspect using his fingerprint to unlock a device that could otherwise only be unlocked by a passcode. Although such evidence can place a suspect in a physical location, the Fifth Amendment prevents the Government from compelling a suspect to divulge his passcode—an “expression of the contents of an individual’s mind.” Order at 4. While technology is moving at a faster pace than the law, the Order underscored the Supreme Court’s emphasis that courts must “take account of more sophisticated systems that are already in use or development” when making decisions about what data is constitutionally protected. Carpenter, 138 S. Ct. at 2218-19 (citation omitted).

Judge Westmore’s denial to compel the use of biometrics from individuals is an important recognition of the privacy issues inherent in electronic data collection. Relying on the Supreme Court’s Carpenter decision, the court ruled that the Fifth Amendment precluded forcing a person to allow a fingerprint or other biometric feature it would be “compelling testimony.” It would be no different than compelling a person to reveal a “password.”

In response to Magistrate Judge Westmore’s initial denial of its search warrant, the Government, has filed a Request for Review of the Duty Magistrate Judge’s Denial of a Search Warrant Application. A hearing on this request is currently set for March 13, 2019.

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Photo of Jonathan S. Feld Jonathan S. Feld

Jonathan Feld’s practice focuses on complex civil and criminal matters, including health care, financial antitrust and antibribery actions. He represents companies, directors and officers in investigations and enforcement actions by the U.S. Department of Justice (DOJ), Securities and Exchange Commission (SEC), the Food and Drug Administration (FDA) and other regulatory agencies. Mr. Feld advises corporations, boards of directors and board committees regarding internal investigations, corporate compliance programs and corporate governance issues, including the Foreign Corrupt Practices Act (FCPA) and data privacy.

Mr. Feld’s work encompasses False Claims Act litigation in a variety of industries including health care and consumer finance. He also represents parties in class actions, arbitrations, and commercial litigation.

 

Photo of Ferdose al-Taie Ferdose al-Taie

Ferdose al-Taie is a member of Dykema’s Commercial Litigation Group and joined the firm in 2017. Ms. al-Taie advocates for clients to resolve complex business challenges in regulatory enquiries and private party disputes involving: securities and compliance (including cryptocurrencies, initial coin offerings (ICOs),virtual exchanges, the EB-5 visa program, anti-money laundering rules (AML) and Bank Secrecy Act (BSA) issues); antitrust/competition law (including private party litigation, Hart-Scott-Rodino (HSR) filings, mergers, acquisitions and joint ventures), government investigations (civil investigative matters and white collar criminal defense) and high-stakes litigation.

Ms. al-Taie has tried criminal and civil cases to verdict before juries and judges in federal district courts and tribunals, in addition to successfully defending those matters on appeal. She has significant experience settling, mediating and arbitrating disputes to resolution as well.

 

Photo of Jane A. Gerber Jane A. Gerber

Jane Gerber is an associate in Dykema’s Dallas office. Ms. Gerber focuses her practice on bankruptcy and restructuring matters.

Prior to joining Dykema, Ms. Gerber clerked for Chief Judge Barbara J. Houser in the bankruptcy court for the Northern District of Texas and Judge Bill P. Parker in the bankruptcy court for the Eastern District of Texas. Ms. Gerber participated in the Summer Honors Program at the Securities and Exchange Commission’s Division of Investment Management in Washington, D.C. and the Division of Enforcement in Fort Worth, Texas. Additionally, Ms. Gerber interned with Chief Judge Brenda T. Rhoades in the bankruptcy court for the Eastern District of Texas.