We used to see it all the time in old spy movies. Agents would maneuver their futuristic gadgets by scanning their face or hand. These ideas that seemed inconceivable in real life back then, have now become a part of everyday life in the modern age of technology. The majority of smartphones these days have a biometric option to unlock your phone, whether it be face recognition software, a fingerprint, or iris scanning.
As technology evolves, laws regarding digital privacy have to evolve alongside it. The section of the Constitution that pops up into most people's heads when digital privacy is mentioned is the Fourth Amendment - it essentially assures that the government needs probable cause to arrest you or search your stuff (including phones).
Right now, however, there's a contentious debate concerning phone biometric features and the Fifth Amendment. The Fifth Amendment, in short, preserves the right for us to not incriminate or “be a witness against” ourselves. This concept is relatively straightforward in the context of a trial, but what happens when law enforcement asks you to unlock your phone using biometrics? Would the Fifth Amendment protect your right to say no?
United States courts have previously upheld the decision that self-incrimination only extends as far as passwords. That is considered “testimonial” information and is protected by the Constitution. This decision implies that biometric features are less secure than a basic password. The reasoning behind that logic echoed by most judges is that a physical feature or a part of the body is an entirely different matter, and shouldn't be protected under the Fifth Amendment. These decisions have given investigators a free-for-all in an era when most phones are encrypted straight out of the box.
A federal judge named Kandis Westmore in California has ruled otherwise in a potential landmark case. The District Court for the Northern District of California declares that the police can't force you to unlock a phone with your face or fingerprints. The case involved an extortion scam in which a suspect demanded money to stop the release of “embarrassing” videos. In response, law enforcement requested a search warrant to pry into smartphones found at the location using a face, fingerprint, or iris scan.
Judge Westmore denied the warrant for two reasons. One was that the request to search all smartphones in the location was overly broad. More importantly, the judge explicitly stated that both biometric features and passwords should legally be considered the same since they are used for the same reasons.
“If a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one's finger, thumb, iris, face, or other biometric feature to unlock that same device,” Westmore wrote. Essentially, forcing someone to use their body to unlock their phone counts as self-incrimination under the Fifth Amendment.
Whether or not this ruling will be upheld by a higher court is impossible to predict. For now, we'll just have to wait and see.
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