Photo of 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.

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.

Continue Reading Biometrics and Search Warrants: The Intersection of Your iPhone and the Fourth and Fifth Amendments