The Innovation of Litigation.

California Judge Says Police Cannot Force You to Unlock a Phone Using Your Face or Fingerprint (ICYMI)

In a decision coming out of the U.S. District Court for the Northern District of California, Judge Kandis Westmore says that all unlocks are equal.

Previously, the government has argued that biometric locks on smartphones (using one’s face, iris, or fingerprint to unlock a phone) do not tread on the 5th Amendment right against self-incrimination. In essence, the argument is that fingerprints and face scans should be treated like physical evidence, rather than testimony.

In contrast, conventional passwords (made up of strings of numbers and letters) have widely been considered testimonial and therefore protected by the 5th Amendment.

Why the difference? Because revealing one’s password requires an act of verbalizing or writing out the password–i.e., giving testimony. See Doe v. United States, 487 U.S. 201, 219 (1988) (Stevens, 17 J., dissenting) (citing Boyd v. United States, 116 U.S. 616, 633-635 (1886); Fisher v. United States, 425 U.S. 391, 420 (1976)); see also United States v. Kirschner, 823 F. Supp. 2d 665, 669 19 (E.D. Mich. 2010 (citing Doe, 487 U.S. at 208 n. 6); Com. v. Baust, 89 Va. Cir. 267, at *4 (2014).

You can see how we got here. Before the days of a fingerprint unlocking devices, fingerprints were collected primarily as physical evidence to place a suspect at the scene of a crime, to show that a suspect held the murder weapon, etc…

But Judge Westmore says that times are changing, and that “the challenge facing the Courts is that the technology is outpacing the law.”

In the opinion, the judge reasons that when a smartphone scans a person’s finger or face, that biometric data is being used to unlock the device “in lieu of a passcode.” Further, requiring someone to use their finger or their face to unlock a device is “fundamentally different” from collecting a suspect’s fingerprint, because the device (and by extension, the government) is using the unlock process to authenticate the ownership and control of the device.

For these reasons, Judge Westmore concludes that the government cannot compel a person to unlock a phone using biometrics. Read the full opinion, here.

An opinion like this is sure to be eyed by litigants across the country as trial lawyers are discussing e-discovery strategy. Smartphones have become windows into our personal and professional lives, and the degree to which that data is protected has tremendous implications for future litigation.

Think this opinion represents a new trend in privacy, personal liberty, and cybersecurity? Think it’ll be challenged? Sound off in the comments!

About Trial by Tech

Trial by Tech is a blog brought to you by Baylor Law’s Executive LL.M. in Litigation Management—the first program in the nation designed exclusively for lawyers who aspire to direct effective litigation strategy, control electronic discovery, leverage technology, manage a team, and lead their company’s or firm’s efforts to manage a high-volume, high-stakes docket.

Here, you will find focused discussions on the #innovation of litigation and the intersection of #legaltech and #litigation. If you like what you are reading, many of the posts are authored by experts from the LL.M. program. To learn more, click here.

Have a great idea for the blog? Want to share your thoughts on a recent post? Connect with us on the Trial by Tech Facebook group or on Twitter @TrialbyTech

The Innovation of Litigation.

Recent Posts

Recent Comments