When Your Password is Your Mugshot: Constitutional Implications of Apple FaceID

What if the only thing required for law enforcement to gain entry into your cellphone was that it be held in front of your face? At a recent keynote event, a few months after the tenth anniversary of the original iPhone, Apple unveiled its new iPhone X. The redesigned smartphone stands out with its large, borderless screen, wireless charging and water resistant capabilities, and perhaps most notably, allowing users to unlock the phone with a simple glance at the phone’s screen. The new feature, which Apple has termed “FaceID,” replaces previous methods of unlocking the phone, such as using a fingerprint, and has been met with mixed reception in the tech community. Privacy issues appear to be the leading concern among critics. However, Apple maintains that now there is only a 1 in 1,000,000 chance of a random face being able to unlock the phone compared to the 1 in 50,000 error rate of the previously used Touch ID technology. But hacking concerns are not the only threat to early adopters of the new technology.
Questions relating to whether the police can force someone to provide access to their cellphone using biometric sources resurfaced with the implementation of fingerprint technology in smartphones, such as Touch ID, several years ago. Since that time, courts around the country have ardently debated the issue, which remains an “open legal question.” In Riley v. California, a 2014 unanimous opinion by the Court held “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Conversely, while many believe alphanumeric passcodes fall within the realm of these safeguards, developments in biometric security measures remain exempt from these Constitutional protections. Much of this notion hinges on the ongoing debate as to what is classified as “testimonial evidence,” tracing back to existing case law that establishes that though an individual can be compelled to hand over the physical key to a locked safe, they cannot be compelled to provide its combination, which constitutes an individual’s “unique knowledge.” A person’s face, similar to their fingerprint, does not amount to testimonial evidence, barring their use from qualifying for Fifth Amendment protections.

Lack of constitutional provisions surrounding the new technology exposes users to loopholes in the foundation of search procedures which bind law enforcement and similar entities.

It seems as though even Apple has come to realize the constitutional loophole law enforcement may employ in searching one of their phones. With iOS 11, the latest iteration of Apple’s mobile operating system, the company has introduced a new SOS feature, referred to by many reviewers as, “the cop button.” By pressing the phone’s power button quickly five successive times, the phone locks itself and only allows the user to dial 911. The phone can then only be unlocked again with the user’s numeric PIN code. While Apple’s main intention in creating this feature was likely the physical safety of the user in emergency situations, the new function serves a dual purpose in its ability to prevent access to the phone except via passcode, which bars law enforcement from accessing the phone through biometric means in the event the user is arrested. While technology may adapt to account for gaps in user’s rights against warrantless searches, it may be time the law evolves to afford biometric security measures such as FaceID the same constitutional protections as “testimonial” passcodes.