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How Face ID could be a game-changer for aggressive US border agents
Apple’s Touch ID is already on its way out. Just five years ago, iPhones began getting the famed fingerprint scanner that makes unlocking your phone dozens of times a day even easier.
But all of the new iPhones released this year—iPhone XS, iPhone XS Max, and iPhone XR—only have Face ID. They do not have Touch ID.
Back in 2013, some smart privacy-minded lawyers (notably Marcia Hofmann) began pointing out that a seemingly small change in technology may have a notable impact on the legal landscape.
As Hofmann pointed out in a September 2013 op-ed for Wired, being compelled by American law enforcement to produce something that you are—a biometric—is not normally protected by the Fifth Amendment privilege against self-incrimination. By contrast, being forced to reveal something that you know (a traditional alphanumeric passcode, for example), is generally protected. Further Reading iPhone XS and XS Max review: Big screens, big performance, big lenses, big prices
This notion was upheld earlier this year by the Minnesota Supreme Court. The court found that a criminal suspect could be compelled to provide his fingerprint to unlock his phone and could not invoke his Fifth Amendment privilege.
However, Touch ID requires a physical, affirmative act of pressing a finger onto the scanner. But Face ID can be used from a few feet away, practically with just a furtive glance.
After Ars spoke with a handful of attorneys, the legal landscape does not appear to have changed from Touch ID to Face ID. It seems very possible that law enforcement (notably, border agents) would be able unlock a phone with such facility under Face ID.
Worse still, because of the strange American legal "border doctrine," in which normal Fourth Amendment protections do not apply, agents might be able to get into a newer iPhone with no problem.
"I agree that that hypothetical is at least plausible, if not more than that," Andrew Crocker, an attorney with the Electronic Frontier Foundation, told Ars. "It's concerning that it could be that easy to get into the contents of a device at the border." No touching required
Further Reading Judge: No, feds can’t nab all Apple devices and try everyone’s fingerprints We concocted a scenario in which an American iPhone XS owner was crossing into the United States at an international airport from abroad. She gets taken aside for secondary screening. Her phone is confiscated. Under questioning across a table, an aggressive agent holds up the iPhone XS in front of her.
"Is this your phone?" the agent asks, facing the screen toward her. She looks directly at the screen, and, as Face ID is enabled, the phone unlocks—even though the traveler is sitting a few feet away and hasn’t touched her phone since it was seized. The agent then swipes up to reach the home screen and has access to most of the personal data on her phone. (In short, basically everything except Apply Pay or Keychain password data. That would require a second Face ID unlock or the passcode.)
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Daniel Baldwin |
For me, for the type of addict I am, when I start getting those swirly thoughts and stuff, and they talk about slippery places, slippery people and slippery things, you know, I need to - I needed to take my cell phone and eliminate all the phone numbers, change the phone numbers so no one I knew before could call me or reach me. |
Gilbert K. Chesterton |
The object of a New Year is not that we should have a new year. It is that we should have a new soul and a new nose; new feet, a new backbone, new ears, and new eyes. Unless a particular man made New Year resolutions, he would make no resolutions. Unless a man starts afresh about things, he will certainly do nothing effective. |
Stephen Daldry |
Actually, to be honest, this is a useful time to not be knowing what I'll be doing in 2013 or 2014, because really, for the last however many years, I've known what I've been doing for years and years ahead. You get into a cycle of non-reflection, and that gets a bit scary. |