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.

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Sentencing Smartphone App Available

The School of Government’s mobile app for Structured Sentencing is available for download. The version for Apple devices—iPhone and iPad—is in the iTunes App Store, linked here. (You’ll need at least an iPhone 4, running iOS7.) The Android version is in the Google Play store, here. Both versions are free. The app will help you … Read more

Search and Seizure iPhone App

If you have an iPhone, an iPad, or an iPod touch, you can now download the School of Government’s first smartphone app, a guide to the law of search and seizure called ASSET. (That’s an acronym for Arrest, Search, and Seizure Electronic Tool, but obviously we also hope that the app will be an asset … Read more

News Roundup

I’ve been busy with New Prosecutors’ School this week. Working on the course, which we co-sponsor with the Conference of District Attorneys, is one of the best parts of my job. I’m always inspired by the enthusiasm, dedication, and professionalism of the assistant district attorneys who attend the school. Even though my full attention has … Read more

Apple’s Upcoming iPhone and Possession of Stolen Goods

Regular readers of this blog know that I’m interested in electronic gadgets. One of my favorites is my Apple iPhone, so I’ve watched with great interest the saga unfolding over at Gizmodo, a leading gadget blog. (This will eventually connect to North Carolina criminal law, I promise.) The basic facts appear to be as follows: … Read more