The Fifth Amendment and Law Enforcement’s Two-Faced Approach to Biometric Information

December 21, 2018

For the first time ever, the FBI forced a suspect to use his own face to unlock his phone. Grant Michalski’s 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 “was required by law enforcement to place his face in front of an iPhone Xthat was found on Michalski’s personwhen the search warrant was executed.” 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’s recent actions beg the question, would a compulsion from law enforcement to unlock your phone using your face withstand a Fifth Amendment challenge?

The FBI’s recent actions beg the question, would a compulsion from law enforcement to unlock your phone using your face withstand a Fifth Amendment challenge?

Apple’s newest models of the iPhone have two mechanisms for keeping your phone locked and information private, facial recognition technology and a numeric passcode. Apple has abandoned the use of the fingerprint, at least for now, in their security features. However, when fingerprints were the current biometric passcode of choice numerous courts ruled that your thumbprint was not protected information under the Fifth Amendment. This is in large part because the Fifth Amendment, which states that no person will be compelled to testify against themselves, only applies to testimonial information. Indeed, in Commonwealth v. Baust a Virginia trial court ruled that “the fifth amendment does not protect you from being compelled to produce your fingerprint to unlock the phone.” However, the court also ruled that you could not be compelled to provide the numeric password for your phone. This is because, according to that court, passwords are knowledge that could lead directly to self-incrimination. Biometric information is not thought of in the same way. The Minnesota Supreme Court shared a similar sentiment. There the court ruled that unlocking your phone via fingerprint is not protected under the Fifth Amendment because it is a “display of the physical characteristics of the body, not the mind, to the police.” The court went on to analogize a fingerprint to providing a key to a lockbox.    Moreover, disclosing your password to law enforcement is more analogous to the testimony that the Fifth Amendment was meant to protect: speaking words that lead to your self-incrimination.

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’s 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’s 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.

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?