Case Document 3 wast ?i MAY 2 6 anB IN THE UNITED STATES DISTRICT COURE FOR THE NORTHERN DISTRICT OF TEXA Filad 05/26/16 u~ ,v .va z; 0-3. UNITED STATES OF AMERICA NO. 3:16-lVi i? V. FILED UNDER SEAL MARTAVIOUS BANKS KEYS APPLICATION FOR ORDER DIRECTING THE DEFENDANT TO UNLOCK A CELLULAR TELEPHONE USING HIS FINGERPRINTS TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW the United States of America, by and through the United States Attorney for the Northern District of Texas, and ?les this it's Government's Application for Order Directing the Defendant to Unlock a Cellular Telephone Using His Fingerprints, pursuant to Title 28 U.S.C. ?1651, and would show the following: I. Martavious Keys (Suspect) is a suspect in an investigation involving sex traf?cking of minors, in violation of Title 18 U.S.C. 1591(a) and a felon in possession of a ?rearm - investigation, in violation of Title 18 U.S.C. 922(g)(1). During the course of the investigation, a federal arrest warrant was issued for Martavious Keys pursuant to a criminal complaint. The warrant was executed on May 19, 2016. At the time of his arrest, Keys was in possession of an Apple iPhone Model SS, IMEI 579C-E2642B, with an FCC ID BCG-E2642A, which is white and gold in color, equipped with the ?Touch The Government presented a search warrant af?davit for the aforementioned Apple iPhone, which was granted by this Court. Case Document 3 Filed 05/26/16 Page 2 of 5 PageID 15 Beginning with the release of 8 (the operating system for Apple mobile devices) in September 2014, Apple no longer has a key to these devices. Thus, even with a properly authorized search warrant to gain access to the content of an device, there is no feasible way for the government to search the device. According to publicly available materials published by Apple, the iPhone SS is equipped with ?Touch a feature that recognizes up to ?ve ?ngerprints designated by the authorized user of the iPhone. A Touch ID sensor, a round button on the iPhone or iPad, can recognize ?ngerprints. The ?ngerprints authorized to access the particular device are a part of the security settings of the device and will allow access to the device in lieu of entering a numerical passcode or longer alpha-numerical password, whichever the device is con?gured by the user to require. The Touch ID feature only permits up to ?ve attempts with a ?ngerprint before the device will require the user to enter a passcode. Furthermore, the Touch ID feature will not substitute for the use of a passcode or password if more than 48 hours have passed since the device has been unlocked; in other words, if more than 48 hours have passed since the device was accessed, the device will require the passcode or password programmed by the user and will not allow access to the device based on a ?ngerprint alone. Similarly, Touch ID will not allow access if the device has been turned on or restarted, if the device has received a remote lock command, or if ?ve attempts to match a ?ngerprint have been unsuccessful. For these reasons, it is necessary to use the ?ngerprints and thumbprints of any device?s users to attempt to gain access to any Apple devices found while executing the search warrant or immediately afterward. The government may not be able to obtain the contents of the Apple devices if Case Document 3 Filed 05/26/16 Page 3 of 5 PageID 16 those ?ngerprints are not used to access the Apple devices by depressing them against the Touch ID button. The undersigned attorney for the Government has spoken with several cellular telephone forensics experts, and they all stated that they are unaware of any method to forensically circumvent or bypass the Touch ID or passcode. In short, if the suspect does not provide his ?ngerprint on the Touch ID sensor or his passcode, it is impossible, at this time, to access the phone and any evidence which may have been found on it will be lost. II. The Supreme Court has explicitly endorsed the use of the All Writs Act to ensure that a court?s search warrants are not frustrated. The Court held that the All Writs Act permits federal courts to ?issue such as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.? United States v. New York Tel. 434 US. 159, 172 (1977). The Government is asking the Court to use its power under the All Writs Act to compel the suspect to unlock his iPhone using his ?ngerprint. The Fifth Amendment?s protection against self?incrimination ?applies only when the accused is compelled to make a testimonial communication that is incriminating.? Baltimore City Dept. of Social Services v. Bouknight, 493 US. 549, 554 (1990). (emphasis added). A communication is testimonial when it ?explicitly or implicitly, relate[s] a factual assertion or disclose[s] information.? Id. A communication is non-testimonial when a person is ?not required to disclose any knowledge he might have, or to speak his guilt.? United States v. Doe, 487 Case Document 3 Filed 05/26/16 Page 4 of 5 PageID 17 US. 201, 210 (1988). Thus, ?certain acts, though incriminating, are not Within the privilege? against self-incrimination, because they are not communications at all. Id. A person?s ?ngerprint does not require him to make any factual assertions or disclose any information. The taking of ?ngerprint samples does not violate any right of the suspect (Schmerber v. Stat? ofCalifornia, 86 1826, 1832 (1966), and does not fall within the category of communications or testimony so as to be protected by the Fifth Amendment. United States v. Gibson, 444 F.2d 275, 277 (5th Cir. 1971). At least one court has addressed this issue and come to the same conclusion. David Charles Baust was charged by indiCtment with violating Code of Virginia 18.2-51.6, Strangling Another Causing Wounding or Injury. Virginia v. Baust, 2014 WL 6709960 (Va.Cir.Ct. 2014). During the course of the investigation, the police secured a search warrant for Baust?s iPhone, which they believed to contain video evidence of the strangulation. The state sought to compel Baust to unlock his phone using his ?ngerprint and to provide his passcode. The court held that providing a ?ngerprint was non-testimonial, and Baust could therefore be compelled to place his ?ngerprint on the Touch ID sensor to unlock the phone. The court reasoned that ?[T]he privilege offers no protection against compulsion to submit to ?ngerprinting, photography, or measurements, to write or speak for identi?cation, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. Even though the act may provide incriminating evidence, a criminal suspect may be compelled to put on a shirt, to provide a blood sample or handwriting exemplar, or to make a recording of his voice. The act of exhibiting such physical characteristics is not the same as a sworn communication by a witness that relates Case Document 3 Filed 05/26/16 Page 5 of 5 PageID 18 either express or implied assertions of fact or belief.? Id. The court did find, however, distinguish between providing a ?ngerprint and providing a passcode. The court found that providing a passcode was a testimonial communication since it required Baust to divulge something that he knew, so the 5th Amendment prohibited the state from compelling him to provide it. WHEREFORE, premises considered, the Government requests that the Court order the defendant, Martavious Keys, to allow investigators to attempt to unlock his Apple iPhone Model 5S, IMEI with an FCC ID BCG-E2642A, which is white and gold in color, using his ?ngers/thumbs and ?ngerprints/thumbprints. Respectfully submitted, JOHN R. PARKER UNITED STATES ATTORNEY CARA FOOS PIERCE Assistant United States Attorney Bar No. 24036579 1100 Commerce Street, Third Floor Dallas, Texas 75242-1699 Telephone: 214-659-8678 Facsimile: 214?767?4100 Email: Cara.Pierce@usdoi . gov