Under the Fifth Amendment, all Americans have the right to refuse to give self-incriminating testimonials. This has for many years been interpreted to include passwords or passcodes. Luckily for most Americans, the courts have ruled that this includes smartphone passwords. This includes numeric codes (1234), letters or words (Pa$$word), and even the pattern that you can choose to use on an Android phone.
Any passcode protected under the Fifth Amendment requires the defendant to divulge some knowledge. That means anything you can tell a police officer is within your right to refuse. However, as a recent case in the Virginia Circuit Court demonstrated, you can’t know your fingerprints.
Biometric Data Not Considered Protected Passcodes
If a police officer wants to search your cell phone for evidence of a crime, they can confiscate it and try and crack your code, but they can’t force you to tell them how to unlock it. The exception to this rule, however would be fingerprints, iris scans, or other biometric identification. Demanding suspects to provide their fingerprints to unlock a phone is constitutional because it’s similar to requiring DNA, handwriting, or a physical key, all of which are permitted with a warrant under the law.
Although technically compelling, this decision could have unexpected consequences for citizens as fingerprint and iris scan passcodes become more common. Already this issue has been raised for iPhone users with TouchID. TouchID technology is a feature found on some iPhone 5S, 6 and 6 Plus models that allows users to unlock their devices with a fingerprint. The argument was that this would be more difficult to hack if a device is stolen. Under the newest interpretation of the law, though, this may not be as secure against police search. While you can reboot your phone before handing it over by holding the Home and Power button for a few seconds to disable TouchID, this judgment may be important to consider when developing other biometric password technology for mobile devices for legal reasons if upheld by higher courts.
When interpreting a 225-year-old law, cases like this can make figuring out the true spirit of the law difficult. While of course a fingerprint is not testimony in itself, there obviously are privacy concerns when it is used as a password. The law is still not fully clear regarding biometrics. We will have to wait and see what other courts decide surrounding this law. If you want to be sure that your data is protected in the meantime, you can always use both and at least invoke the Fifth Amendment for the passcode.
If you have been charged with a crime in Cincinnati or you suspect that law enforcement is investigating you for one, contact experienced Cincinnati criminal lawyer Brad Groene for a free consultation of your case. We are available at any time if you call (513) 338-1890.
