{"id":4871,"date":"2017-01-31T13:34:41","date_gmt":"2017-01-31T17:34:41","guid":{"rendered":"http:\/\/ncjolt.org\/?p=4871"},"modified":"2020-06-04T20:52:57","modified_gmt":"2020-06-04T20:52:57","slug":"pleading-fifth-smartphone","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/pleading-fifth-smartphone\/","title":{"rendered":"How \u2018Pleading the Fifth\u2019 Has Become More Difficult in the Smartphone Era: Why a State Appeals Court Says Unlocking a Smartphone with a Fingerprint is Different Than a Passcode"},"content":{"rendered":"

Three years ago, Apple released an iPhone that changed the way users were able to protect their data.\u00a0 The new smartphone features a fingerprint ID biometric system, allowing users to scan their fingerprint as a method of securing their smartphone and the data inside, as opposed to your typical every-day numerical or alphabetical passcode.\u00a0 Many believe a fingerprint is more unique than a passcode, and a better way to keep thieves and hackers from breaking into a phone<\/a><\/span> with the rise of hacker technologies.\u00a0 In today\u2019s era of smartphone capabilities, it\u2019s also much easier for users to simply hold their finger over the \u201chome\u201d button to enter their phone, instead of having to re-enter a passcode each time they wish to use a different feature.<\/p>\n

However, \u201c[c]ellphone fingerprint passcodes weren\u2019t on James Madison\u2019s mind when he authored the Fifth Amendment, a constitutional protection with roots in preventing torture by barring self-incriminating testimonials in court case<\/strong><\/a>s<\/strong><\/span>.<\/strong>\u201d<\/p><\/blockquote>\n

This ultimately explains the Minnesota Appeals Court ruling against a man who was forced to use his fingerprint to unlock his phone by police<\/a><\/span>.\u00a0 In State v. Diamond<\/em><\/a><\/span>, the government sought an order compelling the defendant to unlock his smartphone with his fingerprint after he was convicted of burglary.\u00a0 When Diamond refused to comply, the trial court ruled that Diamond had no Fifth Amendment privilege available to him, and that by refusing the order he would be found in contempt of court.\u00a0 Diamond ultimately provided his fingerprint, and the police immediately searched his cellphone for evidence of criminal activity.\u00a0 On appeal, Diamond argued that the government violated his Fifth Amendment rights because he \u201cwas required to identify for the police which of his fingerprints would open the phone<\/a><\/span>,\u201d and that \u201cthis requirement compelled a testimonial communication<\/span><\/a>.\u201d
\nThe court rejected this argument and concluded that forcing a person to place a particular finger on a phone does not trigger the Fifth Amendment because it is not \u201ctestimonial.\u201d\u00a0 Under the Fifth Amendment, defendants cannot be compelled to provide self-incriminating testimony (\u201cwhat you know\u201d), but that giving a fingerprint (\u201cwhat you are\u201d) for the purposes of identification is allowed<\/a><\/span>. The court reasons that by being forced to produce his fingerprint, Diamond was not required to disclose any knowledge he may have, or speak to his own guilt<\/a><\/span>.\u00a0 This can be distinguished from cases in which defendants have been ordered to decrypt a hard drive or produce a combination for a safe, and is more synonymous with an order to produce the key to a locked safe.\u00a0 The requirements of the first scenarios \u201cinvolve a level of knowledge and mental capacity that is not present in ordering Diamond to place his fingerprint on his cellphone<\/a><\/span>.\u201d\u00a0 But instead, the task that Diamond was compelled to perform \u201cis no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing<\/a><\/span>\u201d \u2013 all situations where the court ultimately decided that there was no Fifth Amendment violation.
\nWhile the initial decision to hold that a fingerprint is synonymous to a key that opens a safe, or standing in a lineup, both of which do not require any actual testimony, Diamond\u2019s main issue is what is contained in the now-unlocked device that might become incriminating.\u00a0 He pointed to In re Grand Jury Subpoena<\/a><\/span> to support his argument that his fingerprint was, in fact, testimonial.\u00a0 In In re Grand Jury, the court held that \u201crequiring the defendant to decrypt and produce the contents of a computer\u2019s hard drive, when it was unknown whether any documents were even on the hard drive, would be tantamount to testimony by [the defendant] of his knowledge of the existence and location of potentially incriminating files<\/a><\/span>.\u201d\u00a0 The court says the process that unlocked the smartphone \u2013 the fingerprint \u2013 requires no knowledge or mental capacity, and that the end result \u2013 the production of evidence against oneself \u2013 is different because of the part of the body used to obtain access \u2013 the finger vs. the brain<\/a><\/span>.
\nThe Minnesota Appeals Court decision has caused a great deal of confusion, as it seems Diamond would still be demonstrating some form of control over the device and its contents, rendering his fingerprint to still serve as somewhat of a testimonial act, even if it does not rise to the mental level of communicating a password or a combination.\u00a0 The decision calls into question whether or not a four-digit passcode would be \u201cless testimonial\u201d than a nine-digit alphanumeric passcode, if all that is examined if mental effort to determine what is \u201ctestimonial.\u201d However, the precedent that has been established is that fingerprints are less protective of defendants\u2019 Fifth Amendment rights than are passwords<\/a><\/span>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Three years ago, Apple released an iPhone that changed the way users were able to protect their data.\u00a0 The new smartphone features a fingerprint ID biometric system, allowing users to scan their fingerprint as a method of securing their smartphone and the data inside, as opposed to your typical every-day numerical or alphabetical passcode.\u00a0 Many …<\/a><\/p>\n","protected":false},"author":1,"featured_media":4872,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/4871"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=4871"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/4871\/revisions"}],"predecessor-version":[{"id":7129,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/4871\/revisions\/7129"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media\/4872"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=4871"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=4871"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=4871"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}