Apple’s new TouchID – which unlocks the iPhone using a fingerprint instead of a four digit password – is intended to ratchet up the security level of the data stored on your phone. While this new feature may frustrate hackers, it may be less effective at keeping out the police, and may actually give them access they couldn’t otherwise obtain if you used a traditional password.
But why is an advance in technology a hinderance to privacy? The answer lies in what the Fifth Amendment actually protects.
Most people are familiar with the concept that no person can be compelled to testify against themselves. This is why police provide a Miranda warning advising suspects of their right to remain silent. But the right to remain silent is just that- it does not prevent police from taking a booking photo, fingerprints, or in some cases, DNA evidence.
Because your image and your fingerprints are not “testimonial” in nature, courts have concluded that such evidence is not protected by the Fifth Amendment. You leave your fingerprints in public places everyday, and you display your image to the public every time you go outside. By taking your fingerprint or your photograph, the police are not taking any knowledge from you, and they are not requiring you to say anything.
When this concept is applied to a smartphone, the problem becomes readily apparent: unlocking an iPhone using TouchID does not require that police obtain any knowledge from you; it only requires that you place a finger on the phone. Conversely, if the police need a password, they will need your knowledge to get it.
If you think this logic is far-fetched, a Virginia court recently applied this very rationale in concluding that police could not force a suspect to cough-up his password. In doing so, the court reasoned that police could access the data if the phone was protected by biometrics, like a fingerprint or TouchID. You can read the article from the Virginian-Pilot here.
The order comes on the heels of a recent decision from the United States Supreme Court in Riley v. California, 134 S.Ct. 2473 (2014), in which the court unanimously ruled last June that police could not search a person’s cell phone in most situations without a warrant. That decision addressed searches under the Fourth Amendment, and did not implicate whether police – with a warrant to search the phone – could compel a suspect to use his own knowledge against himself.
If you have questions about privacy and the scope of police authority, contact the Tulsa personal injury attorneys at Bryan & Terrill Law, 918-935-2777.