A person suspected of a crime cannot be compelled to divulge to authorities the passcode that would unlock his smartphone. To allow this would be a clear violation of the Fifth Amendment to the Constitution. <\/p>\n
But a fingerprint doesn't share those same protections. At least according to a recent ruling from a Circuit Court judge in Virginia, who found that compelling a suspect to unlock his fingerprint-protected smartphone is just fine and dandy. <\/p>\n
There's some logic here, but it's pretty badly flawed. The thinking behind the decision: The Fifth Amendment to the Constitution states that an individual cannot be forced to testify against himself. As such, compelling someone to fork over a smartphone's passcode -- which would amount to testimony -- would violate the Fifth Amendment. <\/p>\n
But a fingerprint, the judge said, is another story. It's more like a key, which the law has long allowed authorities to obtain from a criminal suspect. <\/p>\n
While one can understand the legal distinction that forms the basis for the ruling, it doesn't long hold up under scrutiny. <\/p>\n
The Fifth Amendment states, in part: \"No person shall be ... compelled in any criminal case to be a witness against himself.\" This is the right that people are invoking when they refuse to testify on the grounds that they may incriminate themselves. <\/p>\n
So legally, a passcode is a kind of testimony, but a key isn't. <\/p>\n
Which is fine as far as it goes. But this is exactly where the judge went wrong. <\/p>\n
A fingerprint can be akin to a key -- or not. In the matter at hand, what it is, in effect, is a replacement for a passcode, which is information that used to be inside the user's head. If we'd once unlocked our phones with physical keys -- like those that open a door or start the car -- the reasoning would make sense, as the fingerprint would be a replacement for same. <\/p>\n
But that's simply not the case. We used to unlock our phones with information in our heads. And that information was protected by the Fifth Amendment. One's fingerprint, simply a replacement for the old memorized pass code, ought reasonably be afforded that same protection. <\/p>\n
<\/p>\n
The rest is here: A person suspected of a crime cannot be compelled to divulge to authorities the passcode that would unlock his smartphone. To allow this would be a clear violation of the Fifth Amendment to the Constitution. Continue reading
\nEditorial: Applying the Fifth Amendment in the era of smartphones<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"