Facial Recognition, Biometric Identification, and the Fifth Amendment

Apple just introduced the iPhone X, a new high-end smartphone. The phone can be unlocked using facial recognition, just as current iPhones can be unlocked using a fingerprint scanner. According to Forbes, the phone “uses a combination of light projectors and sensors to take several images of your facial features,” then compares the face of a person seeking to unlock the phone to the “depth map” it has created.

I wrote here and here about the Fifth Amendment implications of fingerprint scanners. The few courts that have addressed the issue have mostly agreed that a suspect can’t be required to provide the passcode to a phone, absent unusual circumstances, because that would violate the Fifth Amendment’s privilege against self-incrimination. However, courts mostly have held that a suspect may be ordered to press a finger to the phone because doing so is not “testimonial” and so is outside the scope of the privilege.

I thought that this would be a good time to consider facial recognition and the Fifth Amendment, and to provide an update on a recent case that reaches a different result than most other decisions to date.

Facial recognition is analytically similar to fingerprint identification.

Neither one requires the suspect to say or do anything volitional, so I can’t think of a meaningful legal distinction between the two. The same analysis would apply to other biometric identification technologies, such as the iris scanners used in some Windows computers or more exotic options like earlobe geometry and vein matching.

There is widespread interest in the Fifth Amendment implications of facial recognition.

In the week since the iPhone X has been announced, major news outlets including The Atlantic, Popular Science, and The Verge, have addressed the issue. The explosion of media coverage may partly be due to the fact that Apple always generates buzz. But it may also be a result of an increasing societal anxiety about the privacy implications of new technologies.

In any event, Apple is aware of the public’s privacy concerns. The iPhone X won’t unlock if the owner’s eyes are closed, e.g., if the person is asleep, and it won’t unlock for a two-dimensional photograph of the owner. And that’s not all. As PBS notes here:

The new iOS 11 operating software added two security features to keep thieves or law enforcement from accessing your data.

The first is “SOS mode,” which allows panicked users to disable FaceID or TouchID by pressing the power button five times. The second requires a user to enter the phone’s passcode in order to trust a connection with a new computer, making it much more difficult to extract data from an unlocked phone.

New case finding a Fifth Amendment problem with fingerprint unlocking.

I noted above that most courts of the courts that have addressed the issue have ruled that requiring a suspect to participate in biometric identification does not violate the Fifth Amendment because it does not require the suspect to do anything “testimonial.” However, a recent case reflects a different view. In re Application for a Search Warrant, 236 F.Supp.3d 1066 (N.D. Ill. 2017), is a case in which the government sought a search warrant allowing it to search a residence for evidence of child pornography and to seize certain electronic devices. A federal magistrate judge granted the government’s application but rejected its request “to compel any individual who is present at the subject premises at the time of the search to provide his fingerprints and/or thumbprints ‘onto the Touch ID sensor of any Apple iPhone, iPad, or other Apple brand device in order to gain access to the contents of any such device.’” The court noted a Fourth Amendment concern based on the application’s failure to establish a connection between any specific resident of the premises and the unlawful activity. But more pertinent for the purposes of this post, it also concluded that the request would implicate the Fifth Amendment because “with a touch of a finger, a suspect is testifying that he or she has accessed the phone before . . . and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.” Time will tell whether this decision is an outlier or the start of a new line of authority.

Self-incrimination isn’t the only concern about facial recognition.

Finally, it is worth noting briefly that facial recognition is controversial for reasons far beyond the Fifth Amendment. Minnesota Senator Al Franken has asked Apple to answer a number of questions about its facial recognition system, “including how users’ ‘faceprints’ will be protected and safeguarded, if at any point that data will be shared or sold to marketers, and whether or not law enforcement will be able to access the Face ID database.” There are also questions about whether the system will work for all racial groups. As Wired discusses here, past efforts at facial recognition seem to have worked mostly for whites. Finally, we won’t know until the phone is out in the wild whether the facial recognition technology actually works — it appeared to fail during Apple’s keynote introduction of the device.

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