When Can the Government Force You to Use Your Face or Fingerprints to Access Your Phone?

Can the Federal Government Use Your Biometric Data to Unlock Your Phone?

Author: Dana Kutzleb
Case Citation: In re Search of a Residence in Oakland, California, Case No. 4-19-70053 (N.D. Ca. Jan. 10, 2019)
Employee/Personnel/Employer Implicated: Federal Law Enforcement Officers, US Attorneys
eLesson Learned: There is a Divide Among Courts as to Whether Law Enforcement can Compel Biometric Data to Unlock a Phone
Tweet This: Federal Court Says Not So Fast to Rule Allowing Law Enforcement to Use Your Fingerprints or Face to Open Your Phone.

If there is a thing in this world that knows everything about us, it’s our cell phone. All of our banking information, music preferences, public images, and most intimate communications are stored on those tiny devices that never leave our sides. They are our safe space, where we can keep all of our most private information conveniently all in one place, but away from the prying eyes of others. For some of the same reasons a phone is so valuable to a person, the Government would like access for crime-solving purposes. In this arena, the law has had trouble keeping up with technology, and the result is an inconsistent litany of legal precedent leaving judges, law enforcement, and ordinary citizens unsure of where the Constitution stands.

Even if Fourth Amendment principles are satisfied with respect to the Government’s requests to search a phone, the question of the Fifth Amendment remains. We all know the Government cannot force us to make incriminating statements against ourselves, but what that means in the context of decrypting locked phones remains unclear. It is settled that the Government cannot compel us to give up a passcode to unlock a phone, even with a warrant: we know the Fifth Amendment prevents the Government from forcing us to reveal the contents of our minds. Well, mostly.

The question was more difficult when it came to biometrics: the police compel the fingerprints of every person that is arrested and use the information gleaned from those fingerprints all the time. But are cell phones different because the fingerprint is not linking a person to a crime but is instead unlocking a treasure trove of personal data? Generally, both numerous state and federal courts answered in the negative: fingerprints were fair game for law enforcement, even from numerous potential suspects, or the dead. And when Apple introduced facial recognition software to allow users to open their phones simply by looking at them, a court ruled the Government could compel a suspect to use his or her face to open a phone. However widely accepted, these principles were never fully settled among jurisdictions, as one federal court, as early as 2017, decided that to compel the biometric data from a suspect does violate the Fifth Amendment.

This brings us to the most recent federal opinion on the issue, decided in January of 2019. In In re Search of a Residence in Oakland, California, the Government sought a warrant granting the authority to compel biometric data from suspects in an extortion case. The California magistrate judge denied the application. The suspects were accused of contacting a victim through the Facebook Messenger app and threatening to publish an embarrassing video of him if he didn’t pay up. Thus, the evidence most vital to the case would be stored on the phones of the perpetrators: not only to see the content of the blackmailing messages but to confirm the location of their origination. While the Court “sympathized” with the Government’s strong interest in the data on the phones, the judge also found that to compel the suspects to use their own biometric information to hand that evidence over unequivocally violates the self-incrimination protections afforded by the Fifth Amendment. Not to worry for the Government, however, as the Court suggested alternative methods to access the sought data, including going to companies such as Facebook directly. Inconvenient, but still an option, and one that does not run afoul of the Constitution.

So where does this leave us? It’s unclear; existing court decisions lack any real uniformity. Many experts expect that the Supreme Court will weigh in soon to provide some guidance, but with the ever-changing development of new technology, questions of constitutional import will continue to arise. While the tide on biometrics may well be turning, it seems the (still flawed) best bet for now if you want to keep the Government out of your phone is a passcode. 

Dana Kutzleb, a third-year law student at Seton Hall University School of Law, focuses her studies in criminal law. Prior to law school, she graduated from Seton Hall University with B.A. degrees in political science and classical studies. In law school, Dana participated in the Seton Hall Center for Social Justice’s Criminal Defense Clinic and will clerk for a presiding criminal judge in the Superior Court of New Jersey upon graduation.

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