Bio-metrics and iPhone Not Protected by 5th Amendment

When I purchased my iphone 6 a few weeks ago, I was initially excited about the fingerprint recognition. Rather than having to enter my passcode, I could simply apply my finger print to the button a "poof" my phone unlocked! The biometrics is supercool and very convenient.

Unfortunately it opens you up to potential loss of privacy and risk. As a lawyer, this has caused my head to swirl. In fact, just recently, A circuit Court decided that the police could force a person to provide their fingerprint in order to open up the phone for a police search! However, the police could not force a person to provide his secret pin. The Circuit Judge reasoned that forcing the fingerprint is allowable because it is similar to forcing a handwriting sample or DNA, which currently is legal to force. On the other hand, forcing a person to provide his PIN would be forcing the suspect to provide knowledge, which the 5th amendment disallows.

Interestingly, the Supreme Court had previously ruled that a warrant is required before the police can search a cell phone. That remains valid law. However, the issue now is whether the warrant will now force a suspect to provide their fingerprint in order to actually complete the search. As of now it appears that a person does not have to provide the passcode, but does have to provide their fingerprint!

This may come as a surprise to you. Alas, the Fifth Amendment is supposed to guarantee that "no person shall be compelled in any criminal case to be a witness against himself." The distinction is partly that biometric-based fingerprints is something that reflects who we are while memory-based pins are things know. This kind of distinction will continue to rage as technology continues. It's been ongoing since the 5th amendment itself. However, let's take it to the extreme, and this is where we see the faulty logic of the Court. Isn't what we "know" make up part of who we are? If so, then how can the above distinction be correctly applied by the Court as it made it's ruling?

Have you seen the movie Transcendence? The guy, later as a computer program, was made up of all his thoughts and cognitive waves. That was "who he was." If we then follow the logic of the Circuit court judge in the biometrics fingerprint case, then literally everything about the person is compellable and the 5th Amendment really means nothing!

I realize that even as I write this, it sounds confusing and non-cohesive. However, us criminal defense lawyers need to find a way to convince judges to not remove our Constitutional protections.

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