If you’re arrested or a suspect in a crime, the police can’t force you to remember the combination to your safe, or the passcode for your iPhone. But what if that phone can be unlocked with biometric data like a fingerprint? Does the ready access to this information give law enforcement an easy way to open secure devices, or would that be a violation of your constitutional rights?

 

The U.S. Supreme Court made it clear in 2014 that police must have a warrant to search the contents of a mobile device, but does that warrant give them the authority to compel you to use your thumb to actually unlock the device?

 

The answer to that will ultimately hinge on how courts view fingerprints. Is using your finger to unlock the device no different than being ordered to turn over a key, or is putting your fingertip on that button tantamount to testifying against yourself in violation of the Fifth Amendment?

 

Some courts have already chimed in on the matter, with a Virginia state court ruling in Oct. 2014 that while police can’t force suspects to reveal the passcode to their phones, compelling the use of a fingerprint is acceptable because it “does not require the witness to divulge anything through his mental process.”

 

More recently, the L.A. Times writes of a U.S. Magistrate Judge who signed off on a warrant compelling a woman to provide her fingerprint to unlock a phone seized at her boyfriend’s apartment.

 

However, University of Dayton law professor Susan Brenner tells the Times that she believes this is a clear violation of the Fifth Amendment’s prohibition against self-incrimination.

 

“By showing you opened the phone, you showed that you have control over it,” she explains. “It’s the same as if she went home and pulled out paper documents — she’s produced it.”

 

Yet, as noted in the Virginia ruling, the Supreme Court has held in 1976’s Fisher v. United States that “The Fifth Amendment protects against compelled self-incrimination, not the disclosure of private information,” and that compelling a suspect to turn over documents or other evidence that may ultimately be incriminating is not the same as testifying against yourself.

 

While a passcode might be more old-fashioned and seemingly less secure than a biometric lock, there is court precedent giving passcodes more legal protections than fingerprints.

 

In 2010, in U.S. v. Kirschner, a federal court in Michigan held that compelling a defendant to provide a passcode qualifies as testimony because it requires the defendant to “communicate knowledge, unlike the production of a handwriting sample or a voice exemplar,” which — like fingerprints — have long been excluded from Fifth Amendment protections.

 

“This is why I tell my criminal procedure students that they have more protections if they use a passcode rather than fingerprint to guard entry to their phones,” University of Washington law professor Mary Fan explains to Ars Technica. “While I don’t conduct crimes on my cell phone, I still decline to use my fingerprint out of an abundance of caution!”

 

Source: consumerist

That's nuts.

I agree with you. Nothing seems to be off-limits anymore.

I am willing to give up some of my privacy IF it leads to better "security" for me and my family. But forcing someone who is just a "suspect" (and has not been arrested) to use their fingerprint to unlock their phone is going too far. Way too far. They can certainly ask permission, but if the suspect refuses, LE (law enforcement) should get a warrant, IMO. And if the complaint is it takes too long to get a warrant, then they need to restructure the warrant issuing process and have the necessary judicial people on call and with instant access 24/7/365.

 

I can see this as the same as asking a DWI suspect to take a breathalyzer test. They can refuse. That will result in getting arrested then, but they can still refuse and force LE to get a warrant for a blood test then. It is up to LE to do it in a timely fashion before the BAC drops back into legal limits.

 

Now the exception I would go along with is if the police have clear "probable cause" and there are exigent circumstances to honestly believe a 3rd party individual (like a kidnap victim) is in eminent danger and they honestly have reason to believe immediate access to the phone is essential for the safety of that 3rd party.

 

This clearly suggests a serious crime has, or is about to take place. Jaywalking, going 5mph over the limit, or failing to use a turn signal would not justify this "illegal" search.

 

Now to be sure, I fully understand and respect the complications and restrictions (not to mention daily dangers) our law enforcement officials must endure. We ask them to take a bullet for us, then tie their hands (and put them on camera). But bottom line for me is I didn't spend 24+ years in the military defending our rights only to have the government trample on them.

I am going to remove my fingerprint and go back to using passcode on my phones.

Seems like a safer bet.

It's not only law enforcement who may be allowed to force

you to open your phone with your fingerprint! Hackers and

criminals could have a field day if they could physically

force your fingers on the phone. They would have ten

tries with ten fingers ;)

There has always been the possibility (and a favorite Hollywood plot) with any biometrics security measure that badguys might use your body parts - attached or already detached/removed! :eeek: to gain access to secured areas.

Sounds as if someone else has been watching CSI Cyber? :D

Well, I do watch that, but that show is pretty new and pretty sure I've a Bones and a NCIS show where entire hands were missing. And another show involving an eyeball for retina scans. Either way, I want to keep my digits and eyeballs where they belong - at least until I'm done using them! ;)

I hear that...so do I. :beer:

:beer:Another reason to keep our hands! :D