[Nexus 6 Q&A, Help & Troubleshooting] jimtje:
Thank you! So much hubhub over nothing.

First of all, this is the granting of a motion in a District Court in Virginia. It has persuasive value, sure, but it's very very low on the totem pole of persuasion. It certainly doesn't have precedential value although the issue may come up later, so far, the specific issue has yet to be actually been brought up in front of a court of record on its merits, so frankly, we don't know but as of now what an individual judge did for a motion speaks for very little as to concerns about fingerprint readers on a phone.

Second of all, the decision cites the lockbox/safe-combo analogy many times. US v. Hubble, 530 U.S. 23 (2000). This is still good law, but ultimately this is an analogy to explain to the layperson the difference between testimonial (knowledge that you have to divulge because it's in your head and must be compelled to produce out of essentially not existing in the physical realm) and non-testimonial (a physical item that simply exists, like the reading of the time on the clock, a tattoo on someone's knuckles etc). The only distinction the court really makes is that passcodes are testimonial and fingerprints aren't because they physically exist no matter what happens (unless you chop off your fingers, I suppose). This is very preliminary and speaks nothing about the admissibility of the evidence, if any, found on the phone are admissible, any information is relevant, anything could be suppressed, etc. The case has just started and this is really a minor bump in the road for defense, not some giant loss for the privacy community in itself. Sure, you got the fingerprints, but what can you access once you get past the lockscreen that'll be admissible in court? If you can't actually use it then it's really a pointless exercise (except in billing).

Third, while not entirely on point, the decision in Riley v. California, 573 U.S. ___ (2014) shows that the court does actually respond to changing attitudes in how ordinary citizens use devices. While the VA case deals with the issue of responding to a court order, the Supreme Court case deal with a search incident to arrest without a warrant. If there's enough to get a warrant or the VA equivalent (unfamiliar with VA law here, sorry) that requires a motion to compel discovery, prosecution has already built at least somewhat a case against you. There are a multitude of defense strategies but the "I didn't do it" defense is not likely to be on the table if there's potentially incriminating video unless that video directly contradicts victim's description (it happens, but exceedingly rare). Hopefully the rest of us won't find ourselves in this kind of a situation, warrantless search of one's cellphone contents in ANY STATE is still not allowed under Riley as a search incident to arrest, because the precedent there, Chimel, is about weapons and preservation of evidence. Phones are not usually used as weapons - especially today, back in 2009 when Riley was arrested we were all using RAZRs - and if we want to set some sort of program, device, or trigger to encrypt or delete the evidence, the officer would likely not be able to do anything about it, or possibly even know about it, so there's no reason to allow it. Unless those procedures or codes are suddenly nonexistent, your phone, fingerprint or passcode, can't be searched with a warrant. The opinion by CJ Roberts specifically states that " Cell phones, however, place vast quantities of personal information literally in the hands of individuals." Id., 10 (differentiating between a patdown). Roberts also mentioned that there are very few cases where a person, who is about to be arrested, has the time to erase evidence himself that quickly and encryption wasn't even mentioned originally because it was a feature that became widespread while the case was ongoing.

Hell, read the opinion if you want to, these are people in their 70s and 80s talking about technology we use today and how our privacy would be intruded in a far greater and significant way than before if warrantless cell phone searches are allowed. Just Google "Riley v. California". This, I think, speaks volumes and in a voice far louder than an order from a District Court in Virginia. If the highest court of the land thinks that there's such a substantial privacy interest to one's cell phone data that trumps glove compartments, lockboxes, passenger compartments, trunks, pockets, and what have you that outside of some immediate exigent circumstances (you swallowing that SD card connected to your OTG adapter) you need a particularized warrant before searching the contents of one, then I think the law is moving in the right direction as a whole. And it's not all old decrepit defense attorneys who are defending these cases. I worked for one attorney who barely use email, but he's on the edge of retirement. Many young attorneys are very in tune with technology and hell, you don't think you'll find a rooted phone or two with custom kernel, recovery, and ROM in a Big Law office in Manhattan?

Most cases of note lately that I know of have been moving towards the notion that one has a lot of privacy interest in the phone's data and access to it must be strictly limited, and even the VA order notes that, albeit briefly because it's not the topic. I don't know what's the result of the VA Dist. Court. case, but I'd imagine even if you get into someone's phone there's gonna be a lot of stuff you can't touch and the law will follow up to address that. I don't think anyone should freak out over a fingerprint reader unless you plan on using that phone to commit some crime that leaves evidence on your phone in a way where a warrant can be produced that fits the criteria required,. I'm sure the question will be revisited substantially when fingerprint unlocking is widespread and commonplace but not yet.

tl;dr: Chill out, the Supreme Court knows that cell phone data is serious and private and for 99.999% of the folks here (give or take) with or without fingerprints cops won't come looking through your phone for ****s and giggles to see if you committed a crime.