An Apple iPhone X user was forced by law enforcement to unlock his phone with his face.
According to a report in Forbes, 28-year-old Grant Michalski was ordered by an FBI agent to use Face ID to unlock his phone, which he complied with, during a child abuse case in Columbus, Ohio. The resident was charged with receiving and possessing child pornography in August. When FBI agents searched his home they also ordered him to unlock the phone. With it unlocked, the FBI agents were able to search through the suspect’s online chats, photos and whatever else was on the phone.
According to Forbes, the case is a significant moment in the fight between law enforcement and technology companies to access data that is often secured thanks to the security protections the tech companies embedded in their digital devices. Forbes has been tracking these cases since 2016, when the FBI in San Bernardino sued Apple to get access to the phone of the San Bernardino shooter.
Forbes reported that before FaceID, law enforcement would tell suspects to unlock iPhones with their fingerprints and even used the technique on subjects that were deceased. But now with the iPhone X, Face ID is being used in the same way. The FBI did obtain a warrant for the search, but ordering a suspect to open his phone via his face is raising concerns.
“Traditionally, using a person’s face as evidence or to obtain evidence would be considered lawful," said Jerome Greco, staff attorney at the Legal Aid Society. "But never before have we had so many people’s own faces be the key to unlock so much of their private information.”
While Forbes noted there hasn’t been a challenge to the use of Face ID in this case or any other cases, Fred Jennings, a senior associate at Tor Ekeland Law, said challenges could arise due to the Fifth Amendment, which protects people from incriminating themselves in the case. Forbes noted that, in past rulings, suspects could decline to provide passcodes because it would be self-incriminating. The body, however, hasn’t been considered a piece of knowledge, so the same arguments haven’t been applied to biometric information.
“The law is not well formed to provide the intuitive protections people think about when they're using a Face ID unlock,” Jennings said. “People aren't typically thinking [when they use Face ID] that it’s a physical act so I don't have this right against self-incrimination.”