I respectfully disagree. His rational is that they can take a fingerprint and DNA for ID purposes, not to use them as a tool to open access to other items or locations. For example, they could not take that fingerprint or DNA to a bank or a sealed lock and require the opening of the accounts or the lock merely by possession of them. He noted if the phone were locked with a passcode, then they could not compell opening it. Why not? What difference is there? I have a "curtilage," an expectation of privacy that I have established over this object by placing a security lock on it, regardless of how I've locked it.
Under the Constitution a piece of paper posted on an unlocked door declaring no entrance should be just as good a seal against official entry as a ten-inch thick bank door protected by any means available to me. What protects me is my RIGHT against unreasonable search and seizure. It is not the physical or puzzle barrier that prevents the authorities from opening that door (or phone) but the strong arm of Constitutional Law. . . and my intent and trust that Law should and will keep them out.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Anything less is Tyranny. . . including quibble points about whether I've locked my "door" with a fingerprint or a single or multiple character passcode. My intent was that no one but myself get access, regardless of the lock method I chose, and my intent is the controlling factor, not the key used to open the lock.
With modern smart iPhones, gaining access to the phone not only gains the authority access to the gigabytes of contents of the iPhone but also to the entire set of data on his iCloud account and other iDevices that may be linked. Finding anything in particular is, by its very nature of necessity, a fishing expedition among a lot of irrelevancies to which they should not be allowed access. ". . . things to be seized." should always be extremely specific, especially when relating to data, images, documents, emails, phone call records, etc., and not be something general such as "everything on a phone."
In Riley v. California (2014), the Supreme Court ruled unanimously that police must obtain a warrant to search an arrestee's cellular phone. The Court said that earlier Supreme Court decisions permitting searches incident to an arrest without a warrant do not apply to "modern cellphones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy," and noted that US citizens' cellphones today typically contain "a digital record of nearly every aspect of their lives — from the mundane to the intimate."
There is simply too much there now. If they have to have a warrant for an arrestee, how much more do they need one for something else? Riley was was based on a case brought before iCloud and multiply connected iDevices opened the possibility of opening more than just the named device to search.
Also in Riley:
Justice Samuel Alito wrote an opinion concurring in part and concurring in the judgment, citing his dissent in Arizona v. Gant that called Chimel's reasoning "questionable". That said, he agreed that
"we should not mechanically apply the rule used in the predigital era to the search of a cell phone. Many cell phones now in use are capable of storing and accessing a quantity of information, some highly personal, that no person would ever have had on his person in hard-copy form."
I haven't read the ruling, but it sounds like it's based on a key-combination dichotomy. A locks combination (password) being testimonial which is clearly protected vs. a key (fingerprint) which is not.
"My intent was that no one but myself get access,...."
Maybe so, but you have stated that a warrant is still necessary so 'they' would have authority to access. Your right against self incrimination would be relevant at this point and as long as you are the only one that knows your passcode, and it's not easily hacked, your intentions may prove fruitful
Amen Swordmaker.
It's interesting, is it not, that for years they've used the insecurity of wireless phones, and then later cellphones to claim that we had no 'reasonable expectation of privacy' in our communications. Now we're finally seeing decent cryptographic protocols being deployed to protect our privacy and these same tyrants are trying to claim the right to it anyway. There is no technical barrier to prevent absolutely secure coms from being universally deployed across the entire line of smartphone lines. It would be trivial to implement if the government didn't throw their 500# weight around to prevent it. If we can ever regain a Constitutional government again, we may see the day where wiretapping will be a thing of the past, as it should already be today.
This issue involves what I dub the “rag doll standard” for 4th Amendment protection: if they can achieve their goal using your limp uncooperative body to do it, they can. In this case, we’re looking at a lock which can be opened with your finger - akin to finding a key in your pocket. If they have a warrant to look inside the phone or box, and only need your finger, they can use your limp form to do so. What they can’t do is either invade that storage without a warrant (per _Riley_), or compel you to state the passcode (akin to a combination lock which they lack tools to open without the number in your head - that’s their problem, not yours).
I don’t necessarily like where this line is, but it’s the only “bright line” I can come up with for the subject. If they’ve got a warrant to “enter” the object (physically or informationally), they can use whatever physical items they can manipulate as needed to do so; they just can’t compel/coerce what’s in your head. If they find the key or use your finger and can get in, they can; if they can’t cut the lock or persuade you to state the code, too bad for them.