{"id":5804,"date":"2018-12-21T12:20:06","date_gmt":"2018-12-21T16:20:06","guid":{"rendered":"http:\/\/ncjolt.org\/?p=5804"},"modified":"2020-06-04T20:52:29","modified_gmt":"2020-06-04T20:52:29","slug":"the-fifth-amendment-and-law-enforcements-two-faced-approach-to-biometric-information","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/the-fifth-amendment-and-law-enforcements-two-faced-approach-to-biometric-information\/","title":{"rendered":"The Fifth Amendment and Law Enforcement\u2019s Two-Faced Approach to Biometric Information"},"content":{"rendered":"\n

For the first time ever, the FBI forced a suspect to use his own face to unlock his phone<\/a>. Grant Michalski\u2019s home was being searched in connection to a child pornography charge that would be filed later that month. According to the affidavit<\/a> in support of the search warrant Michalski \u201cwas required by law enforcement to place his face in front of an iPhone Xthat was found on Michalski\u2019s personwhen the search warrant was executed.\u201d It seems that Michalski voluntarily put his face in front of his phone to unlock it. Thus, a constitutional challenge of the actions will likely never come to fruition. However, the FBI\u2019s recent actions beg the question, would a compulsion from law enforcement to unlock your phone using your face withstand a Fifth Amendment challenge? <\/p>\n\n\n

The FBI\u2019s recent actions beg the question, would a compulsion from law enforcement to unlock your phone using your face withstand a Fifth Amendment challenge? <\/p><\/blockquote>\n\n\n

Apple\u2019s\nnewest models of the iPhone have two mechanisms for keeping your phone locked\nand information private, facial recognition technology and a numeric passcode. Apple\nhas abandoned the use of the fingerprint, at least for now, in their security\nfeatures. However, when fingerprints were the current biometric passcode of\nchoice numerous courts ruled that your thumbprint was not protected information\nunder the Fifth\nAmendment<\/a>. This is in large part because the Fifth Amendment, which\nstates that no person will be compelled to testify against themselves, only\napplies to testimonial information. Indeed, in Commonwealth v. Baust <\/em>a Virginia trial court ruled that \u201cthe fifth\namendment does not protect you from being compelled to produce your fingerprint\nto unlock the phone.\u201d However, the court also ruled that you could not be\ncompelled to provide the numeric password for your phone. This is because,\naccording to that court, passwords are knowledge that could lead directly to\nself-incrimination. Biometric information is not thought of in the same way.\nThe Minnesota Supreme Court shared a similar sentiment. There the court ruled\nthat unlocking your phone via fingerprint is not protected under the Fifth\nAmendment because it is a \u201cdisplay of the physical characteristics of the body,\nnot the mind,<\/em> to the police.\u201d The\ncourt went on to analogize a fingerprint to providing a key to a lockbox.    Moreover, disclosing your password to law\nenforcement is more analogous to the testimony that the Fifth Amendment was\nmeant to protect: speaking words that lead to your self-incrimination. <\/p>\n\n\n

Considering these recent rulings, it seems that a constitutional challenge of the legality of compelling a suspect to unlock their phone with their face would fail. There is no substantial difference between a person\u2019s face and their fingerprint. Both are unique to the individual, both can be used to identify suspects of a crime, and both are used in similar manners for unlocking phones. Moreover, the case for an individual\u2019s face to be protected under the Fifth Amendment may be even weaker than that of the fingerprint. Unlike fingerprints, your face is constantly on display to the world. Furthermore, you only have one face that you could use to unlock your phone, whereas you have ten fingers to chose from. It could be argued that the information of which fingerprint unlocks the phone could be considered knowledge that leads to self-incrimination, or at least more of a chance to be considered knowledge than your face. <\/p>\n\n\n

The Fifth Amendment distinction of testimonial information seems antiquated. The distinction between a numeric password and a biometric password is negligible. Broken down to its simplest form, unlocking your phone with a numeric password, a thumbprint, or a facial scan are all essentially doing the same thing; all three take an input from the user of the phone, convert that input to a series of ones and zeroes, and then allow the user, or law enforcement, to access an amount of personal information that our founding fathers could have never imagined. The only real difference is that the numeric code must be spoken to law enforcement, while no words are necessary for biometric signatures. However, if a law enforcement officer can compel you to put your finger or face up to a phone to unlock it, why can they not force you to tap a few buttons on your phone? <\/p>\n","protected":false},"excerpt":{"rendered":"

For the first time ever, the FBI forced a suspect to use his own face to unlock his phone. Grant Michalski\u2019s home was being searched in connection to a child pornography charge that would be filed later that month. According to the affidavit in support of the search warrant Michalski \u201cwas required by law enforcement …<\/a><\/p>\n","protected":false},"author":1,"featured_media":5805,"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\/5804"}],"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=5804"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/5804\/revisions"}],"predecessor-version":[{"id":6897,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/5804\/revisions\/6897"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media\/5805"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=5804"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=5804"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=5804"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}