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.
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!
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Attorneypreneur, writer, technologist. Nerdy for legaltech, politics, crypto, cybersecurity, innovation. Presently in-house at Williams & Brown. Former adviser at Baylor Law, and founder of two technology and legal consulting companies. @JoshuaWeaverEsq