That was the first publicly known instance of posthumous Touch ID access attempts by authorities, though there have been more since. "Separate sources close to local and federal police investigations in New York and Ohio," Forbes wrote in March, "who asked to remain anonymous as they weren't authorized to speak on record, said it was now relatively common for fingerprints of the deceased to be depressed on the scanner of Apple iPhones."
It's widely accepted nowadays, then, when a person dies, they may specify to be (or not to be) an organ donor, to be cremated or buried, or even to be wrapped in bedsheets and unexamined. Perhaps now is an era calling for the need of overly specific privacy and security instructions, including no posthumous fingerprinting, no unlocking of private folders, or even "bury me with my phone."
If it sounds outrageous, think about what could be found on your devices and in your DMs and search history for authorities and family to find if tomorrow was suddenly your day to explore the hereafter.
Let's imagine law enforcement mistaking your intentions and then the next thing you know, you're tits-up in the morgue while the cops corpse-finger your phone and then have a frank discussion about what's in your photo albums. Not cool, right?
With the living, as most know, a regular password or passcode is protected by the Fifth Amendment's safeguards for self-incrimination. Police can't force you to give it up. But if your device is only protected by a fingerprint, your phone and all its contents are fair game.
For instance, in May 2016, U.S. Magistrate Judge Alicia Rosenberg made headlines when she issued a warrant to search an Armenian gangster's girlfriend's phone by taking her fingerprint and unlocking her iPhone. Things would have been different had the woman been using a regular password or passcode, which is protected by those Fifth Amendment safeguards. Rosenberg's decision was preceded by a Virginia Circuit Court judge in October 2014, where it was a ruled that giving biometric data is not the same as divulging knowledge.
But when you die, so do a lot of your rights. No heartbeat? No warrant needed. The Tampa Bay Times wrote that a deceased person "can't assert their Fourth Amendment protections because, well, you can't own property when you're dead," according to Charles Rose, professor and director of the Center for Excellence in Advocacy at Stetson University College of Law.
If this seems backwards and problematic, then you're noticing how badly the law needs to catch up with new technology, as well as new corridors of abuse for authorities. Think of our laws around tech, privacy and the demands of authorities like an old building. A building that has every inch of usable space utilized. But with new technologies, that building needs to be expanded. The only thing really guiding it is the structural bits that can't be moved (like the Fifth Amendment). To expedite growth into the next room, cops are basically just punching through walls. Until someone tries to stop them, anyway.
Here's the thing. Generally speaking, authorities can get into your device if they really want to, meaning having the budget to spend on phone cracking software or shady ethics-free hacking teams. But most departments don't have that kind of budgeting, so when push comes to shove, sometimes a cop is gonna pull rank with the goths at the morgue.
Should you be worried? Yes! You should totally be worried! Look around! Between ICE and Facebook, it's a free for all with rights and privacy right now. We lost net neutrality, the internet left sex workers to die, Russia runs the country, and the wrong Terms agreement could land you in a bathtub of ice missing a couple necessary organs!
Seriously: Don't lock your phone with your fingerprint. These things were designed by people who never leave the house.