I’ve written before about whether a court may order a person to provide a password to a computer or a passcode to a phone to enable an officer to complete a lawful search, such as one pursuant to a search warrant. But passwords and passcodes are so old-fashioned. The cool kids are all using biometric data like fingerprints to secure their devices. So, may a person be required to unlock his or her device using a biometric identifier? Yes, said one court recently.
The short version. The Los Angeles Times has the story here. In a nutshell, “authorities obtained a search warrant compelling the girlfriend of an alleged Armenian gang member to press her finger against [a seized] iPhone . . . [because] prosecutors wanted access to the data inside it.”
The Fifth Amendment controversy. The story asks whether such a warrant violates the Fifth Amendment guarantee against self-incrimination. One law professor says yes, because “[b]y showing you opened the phone, you showed that you have control over it.” A different professor says no, because placing your finger on a phone isn’t testimonial: “Unlike disclosing passcodes, you are not compelled to speak or say what’s ‘in your mind’ to law enforcement.” Ars Technica has a follow-up story here, and the balance of expert opinion seems to be that there is no Fifth Amendment problem. A professor quoted in that story said that “While I don’t conduct crimes on my cell phone, I still decline to use my fingerprint out of an abundance of caution!”
Little authority. The only decision I could find on point concurs. See State v. Baust, 2014 WL 10355635 (Va. Cir. Ct. Oct. 28, 2014) (ruling that “the Defendant cannot be compelled to produce his passcode to access his smartphone but he can be compelled to produce his fingerprint to do the same,” because while the former is testimonial, “[t]he fingerprint, like a key, . . . does not require the witness to divulge anything through his mental processes”). See also Erin M. Sales, Note, The “Biometric Revolution”: An Erosion of the Fifth Amendment Privilege to Be Free from Self-Incrimination, 69 U. Miami L. Rev. 193 (2014) (suggesting that “biometric authentication will not implicate the privilege to be free from self-incrimination”). But see Kara Goldman, Note, Biometric Passwords and the Privilege Against Self-Incrimination, 33 Cardozo Arts & Ent. L.J. 211 (2015) (arguing that biometric identifiers should be protected by the Fifth Amendment because “use of the fingerprint as a password is a direct link to communicative, as well as potentially incriminating, information, and serves as a replacement for the traditional numeric or alphabetic password, which has recently received Fifth Amendment protection from the judicial system”).
Preliminary thoughts. I’ll have to chew on this one a little bit. My initial reaction is that the majority view – that there is no Fifth Amendment problem – is probably right. In United States v. Wade, 388 U.S. 218 (1967), the Supreme Court ruled that requiring a bank robbery suspect to participate in a lineup and to say words spoken by the robber did not implicate the Fifth Amendment because it was “compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have.” I’ll need to think more about whether passcodes are different. In the meantime, I welcome your thoughts and comments.