As we keep more and more personal data on our phones, iPhone and Android devices now have some of the most advanced encryption technology in existence to keep that information safe from prying eyes. The easiest way around that, of course, is for someone to gain access to your phone.

This week, a federal court decided that police officers can make you unlock your phone, even by physically forcing you to press your thumb against it.

In November 2021, Jeremy Payne was pulled over by two California Highway Patrol (CHP) officers over his car's window tinting. When asked, Payne admitted that he was on parole, which the officers confirmed. After finding Payne's cellphone in the car, officers unlocked it by forcibly pressing his thumb against it as he sat handcuffed. (The officers claimed in their arrest report that Payne "reluctantly unlocked the cell phone" when asked, which Payne disputed; the government later accepted in court "that defendant's thumbprint was compelled.")

The officers searched through Payne's camera roll and found a video taken the same day, which appeared to show "several bags of blue pills (suspected to be fentanyl)." After checking the phone's map and finding what they suspected to be a home address, the officers drove there and used Payne's keys to enter and search the residence. Inside, they  found and seized more than 800 pills.

Payne was indicted for possession with intent to distribute fentanyl and cocaine.

In a motion to suppress, Payne's attorneys argued that by forcing him to unlock his phone, the officers "compelled a testimonial communication," violating both the Fourth Amendment's protection against unreasonable search and seizure and the Fifth Amendment's guarantee against self-incrimination. Even though the provisions of his parole required him to surrender any electronic devices and passcodes, "failure to comply could result in 'arrest pending further investigation' or confiscation of the device pending investigation," not the use of force to make him open the phone.

The district court denied the motion to suppress, and Payne pleaded guilty. In November 2022, he was sentenced to 12 years in prison. Notably, Payne had only served three years for the crime for which he was on parole—assault with a deadly weapon on a peace officer.

Payne appealed the denial of the motion to suppress. This week, in an opinion authored by Judge Richard Tallman, the U.S. Court of Appeals for the 9th Circuit ruled against Payne.

Searches "incident to arrest" are an accepted part of Fourth Amendment precedent. Further, Tallman wrote that as a parolee, Payne has "a significantly diminished expectation of privacy," and even though the conditions of his parole did not require him to "provide a biometric identifier," the distinction was insufficient to support throwing out the search altogether.

But Tallman went a step further in the Fifth Amendment analysis: "We hold that the compelled use of Payne's thumb to unlock his phone (which he had already identified
for the officers) required no cognitive exertion, placing it firmly in the same category as a blood draw or fingerprint taken at booking," he wrote. "The act itself merely provided CHP with access to a source of potential information."

From a practical standpoint, this is chilling. First of all, the Supreme Court ruled in 2016 that police needed a warrant before drawing a suspect's blood.

And one can argue that fingerprinting a suspect as they're arrested is part and parcel with establishing their identity. Nearly half of U.S. states require people to identify themselves to police if asked.

But forcibly gaining access to someone's phone provides more than just their identity—it's a window into their entire lives. Even cursory access to someone's phone can turn up travel history, banking information, and call and text logs—a treasure trove of potentially incriminating information, all of which would otherwise require a warrant.

When they drafted the Fourth Amendment, the Founders drew on the history of "writs of assistance," general warrants used by British authorities in the American colonies that allowed government agents to enter homes at will and look for anything disallowed. As a result, the Fourth Amendment requires search warrants based on probable cause and signed by a judge.

Tallman does note the peculiar circumstances of the case: "Our opinion should not be read to extend to all instances where a biometric is used to unlock an electronic device." But, he adds, "the outcome…may have been different had [the officer] required Payne to independently select the finger that he placed on the phone" instead of forcibly mashing Payne's thumb into it himself.

The post Appeals Court Rules That Cops Can Physically Make You Unlock Your Phone appeared first on Reason.com.

The government and private companies spy on us.

My former employee, Naomi Brockwell, has become a privacy specialist. She advises people on how to protect their privacy.

In my new video, she tells me I should delete most of my apps on my phone.

I push back. I like that Google knows where I am and can recommend a "restaurant near me." I like that my Shell app lets me buy gas (almost) without getting out of the car.

I don't like that government gathers information about me via my phone, but so far, so what?

Brockwell tells me I'm being dumb because I don't know which government will get that data in the future.

Looking at my phone, she tells me, "You've given location permission, microphone permission. You have so many apps!"

She says I should delete most of them, starting with Google Chrome.

"This is a terrible app for privacy. Google Chrome is notorious for collecting every single thing that they can about you…[and] broadcasting that to thousands of people…auctioning off your eyeballs. It's not just advertisers collecting this information. Thousands of shell companies, shady companies of data brokers also collect it and in turn sell it."

Instead of Google, she recommends using a browser called Brave. It's just as good, she says, but it doesn't collect all the information that Chrome does. It's slightly faster, too, because it doesn't slow down to load ads.

Then she says, "Delete Google Maps."

"But I need Google Maps!"

"You don't." She replies, "You have an iPhone. You have Apple Maps…. Apple is better when it comes to privacy…. Apple at least tries to anonymize your data."

Instead of Gmail, she recommends more private alternatives, like Proton Mail or Tuta.

"There are many others." She points out, "The difference between them is that every email going into your inbox for Gmail is being analyzed, scanned, it's being added to a profile about you."

But I don't care. Nothing beats Google's convenience. It remembers my credit cards and passwords. It fills things in automatically. I tried Brave browser but, after a week, switched back to Google. I like that Google knows me.

Brockwell says that I could import my credit cards and passwords to Brave and autofill there, too.

"I do understand the trade-off," she adds. "But email is so personal. It's private correspondence about everything in your life. I think we should use companies that don't read our emails. Using those services is also a vote for privacy, giving a market signal that we think privacy is important. That's the only way we're going to get more privacy."

She also warns that even apps like WhatsApp, which I thought were private, aren't as private as we think.

"WhatsApp is end-to-end encrypted and better than standard SMS. But it collects a lot of data about you and shares it with its parent company, Facebook. It's nowhere near as private as an app like Signal."

She notices my Shell app and suggests I delete it.

Opening the app's "privacy nutrition label," something I never bother reading, she points out that I give Shell "your purchase history, your contact information, physical address, email address, your name, phone number, your product interaction, purchase history, search history, user ID, product interaction, crash data, performance data, precise location, course location."

The list goes on. No wonder I don't read it.

She says, "The first step before downloading an app, take a look at their permissions, see what information they're collecting."

I'm just not going to bother.

But she did convince me to delete some apps, pointing out that if I want the app later, I can always reinstall it.

"We think that we need an app for every interaction we do with a business. We don't realize what we give up as a result."

"They already have all my data. What's the point of going private now?" I ask.

"Privacy comes down to choice," She replies. "It's not that I want everything that I do to remain private. It's that I deserve to have the right to selectively reveal to the world what I want them to see. Currently, that's not the world."

COPYRIGHT 2023 BY JFS PRODUCTIONS INC.

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