Columbus FBI Case Poses New Question In Privacy Law

Oct 6, 2018

A legal case in Columbus that’s recently come to light is raising questions about the intersection of technology and privacy.

The FBI raided Grant Michalski’s home in Columbus in August, looking for evidence that he sent or received child porn. Forbes reports that an agent told him to put his face in front of his iPhone X, which unlocked the phone and allowed the investigator to look through its contents.

"In a sense this is not a new problem because there have been old cases where suspects have been forced to give safe combinations to the police, so this is just a newer version of that," said Ric Simmons, professor at Ohio State and expert on surveillance and law.

Simmons points out that police still have to get a warrant to search the device, per the Fourth Amendment, but providing information that gives them access to the device becomes a question of the Fifth Amendment, which protects citizens from self-incrimination. The issue has come up before with numerical passwords, but Simmons says there's a distinction between that and biometric mechanisms like fingerprint or face scans.

"If anything the biometric passwords are going to be easier for the law enforcement to get access to, because there's a long line of case law that says when the police are only taking your picture or your fingerprint or something that's public like that from you, that doesn't implicate the Fifth Amendment, that is self-incrimination," he says.

Both the Columbus Police Department and Ohio’s Bureau of Criminal Investigation have access to tech that allows them to get information off of iPhones without a passcode, but Simmons says that doesn't mean a passcode is legally useless.

"Although they do have these devices now, the technology of encrypting the information is going to outpace the ability of the police to decrypt the information," he says. "The police are always going to be playing catch-up, even the FBI is playing catch-up."

And Simmons says it probably won't matter whether that information is behind a fingerprint scan, FaceID, or numerical password.

"It's easier legally for the police to get information if there's a biometric password, but I think most courts have, and will continue, to say that even the numerical password can be something you can be forced to give up," Simmons says.