Feds Finally Get Around To Using Someone's Face To Unlock Their Cellphone

The only surprise about this is that it took this long to happen.

A child abuse investigation unearthed by Forbes includes the first known case in which law enforcement used Apple Face ID facial recognition technology to open a suspect's iPhone. That's by any police agency anywhere in the world, not just in America.

It happened on August 10, when the FBI searched the house of 28-year-old Grant Michalski, a Columbus, Ohio, resident who would later that month be charged with receiving and possessing child pornography. With a search warrant in hand, a federal investigator told Michalski to put his face in front of the phone, which he duly did. That allowed the agent to pick through the suspect's online chats, photos and whatever else he deemed worthy of investigation.

This won't become a Fifth Amendment test case for several reasons.

First, Michalski apparently consented to the search by using his face to unlock the phone. If this was as voluntary as it appears, it pretty much eliminates a Constitutional challenge.

Beyond that, it's unlikely a court would find someone's face testimonial. For the most part, courts haven't found fingerprints to be testimonial, even if the application of a fingerprint leads directly to the production of evidence to be used against the phone's owner.

The "foregone conclusion" argument would only require law enforcement prove the phone belongs to the person they're asking to unlock it -- information easily acquired with a subpoena from the service provider.

Even if all these hurdles could be jumped, actions taken by the investigating agent pretty much eliminated any evidence the defendant might have challenged, as Forbes' Thomas Brewster reports.

Whilst Knight may've found some evidence of criminal activity when he manually searched the device, in one respect the forced Face ID unlock of the iPhone X was a failure. It wasn't possible to siphon off all the data within using forensic technologies. That was because the passcode was unknown.

In modern iPhones, to hook the cellphone up to a computer and transfer files or data between the two, the passcode is required if the device has been locked for an hour or more. And forensic technologies, which can draw out far more information at speed than can be done manually, need the iPhone to connect to a computer.

It appears Knight didn't keep the device open long enough and so couldn't start pulling out data with forensic kits. He admitted he wasn't able to get all the information he wanted, including app use and deleted files. What Knight did get he documented by taking pictures.

Michalski's lawyer confirms in a comment to Forbes there's been no evidence produced from the unlocked iPhone, leaving him nothing to challenge in court.

Even if this case is a wash in terms of Constitutional challenges, that doesn't mean the status quo will remain unchanged as more phone manufacturers move towards biometric-based security features. Courts may recognize -- as they have with smartphones and cell location data -- that old assumptions about privacy and presumed government access are no longer valid in a world almost wholly reliant on portable devices filled to the brim with personal data and documents.