Login | May 20, 2019

Court rules biometrics covered by Fifth Amendment

RICHARD WEINER
Technology for Lawyers

Published: March 1, 2019

Most new smartphones and some tablets and even new computers have the capability of being locked/ unlocked using fingerprints, eye scans or facial recognition. These scans, using a part of an individual’s body for one-of-a-kind recognition to access an electronic device, are called biometrics.

For reference, multiple sci fi movies from Minority Report to Blade Runner 2049 have used the idea of using someone’s eyes, fingerprints and whole digits to access private materials.

But this is real life now. And real questions. Particularly, there has been some question recently about the ability of law enforcement to force a user to open a device using that living person’s appropriate body part against his will.

The question has been—are biometrics passive, like the fingerprint itself, or are they active, choice-based and therefore possibly testimonial so that they would be protected under the Fifth Amendment?

Past cases have only dealt with passwords and other active measures, finding them to be testimonial and therefore protected. But there hasn’t been a biometric decision until now.

And finally, a federal judge has spoken on the issue, and it may not be good news for law enforcement.

Judge Kandis Wetmore of the Northern District of California has ruled that a person may not be compelled to use their biometrics to open a smartphone. Her ruling states that requiring the defendant to do so would be a violation of the Fifth Amendment right against self-incrimination.

In holding in this way, the judge has equated biometrics to a statement and made biometrics testimonial and therefore denying a search warrant on the defendant’s phone.

The case is a blackmail case involving a video on Facebook Messenger.

Westmore wrote that “technology is outpacing the law,” and that biometric data could be considered “testimonial communication” protected by the Fifth Amendment. “Testimony is not restricted to verbal or written communications,” the judge wrote. 

Wetmore stated: “If a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device.”

Obviously, other courts are going to weigh in on this, but at least bnnow there is some anchor to analyzing these cases.

The case, In the Matter of the Search of a Residence in Oakland, California is ND California case no. 4-19-70053.


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