“Thanks to the Fifth Amendment protection against self-incrimination, criminal suspects can’t be compelled to divulge their passcodes for unlocking their phones; but some have argued that biometric scans are not information, and therefore can’t be subject to the same limitation.”
Another judge has weighed in on the issue of whether police have the right to compel criminal suspects to unlock their smartphones using biometrics, this time via a district court in California.
The ruling comes from magistrate judge Kandis Westmore, who denied a police request for a search warrant asking that investigators be allowed to compel smartphone unlocks via facial, fingerprint, or iris scan of individuals within a specified property who were suspected of an extortion scheme conducted over Facebook. The judge said that the request was “overbroad”, and also asserted that the government doesn’t have the right to compel suspects to incriminate themselves by unlocking their phones for investigators using biometric authentication.
It’s the latest development in what has turned into a complex legal issue as biometric unlock systems have become prominent across a range of smartphones over the last few years. Thanks to the Fifth Amendment protection against self-incrimination, criminal suspects can’t be compelled to divulge their passcodes for unlocking their phones; but some have argued that biometric scans are not information, and therefore can’t be subject to the same limitation.
In her ruling, judge Westmore appears to be clarifying that it is the unlocking of the smartphone itself that is potentially self-incriminating, whether that’s done with a password or a biometric scan; and thus, it’s unconstitutional. It’s not the definitive ruling on the issue, but it’s a perspective that could be embraced across the nation’s legal community thanks to its clarity on the issue, which cuts through the absurdity of allowing police to compel access to smartphones when biometric security is in play, but not when passcodes or PINs are used.
January 15, 2019 – by Alex Perala