Biometric Access - Is a Warrant Required?
Whether you use an iPhone, Samsung Galaxy, or some other type of smartphone, chances are your device utilizes some type of biometric unlock option for security. This could involve fingerprint, iris scanning, or facial recognition technology.
Because smartphones are basically handheld computers, they often contain a wealth of information about their owners.Â This is why police will routinely attempt to seek access to an arresteeâs smartphone data, either by consent of the owner or through the warrant process.
Before a search can be conducted, however, police still need either the ownerâs password or his/her biometric data or the contents of the smartphone will remain inaccessible.
In most states, police cannot require a person to provide the password to a seized smartphone â even with a warrant â since doing so is considered compelled testimony that is protectedunder the Fifth Amendment.
But some courts have held that the same Fifth Amendment protection does not extend tobiometric security features, in effect rendering them less secure than a password.
However, a federal judge in California recently ruled that an individual cannot be compelled by law enforcementto unlock a phone with biometrics.
The case considered whether police could obtain a search warrant compelling anindividual present to âpress a finger (including a thumb) or utilize other biometric features, such as facial or iris recognition, for the purpose of unlocking the digital devices found in order to permit a search of the contentsâŚâ
The judge, in denying the warrant application, found no real distinction between biometric features and a password. âIf a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide oneâs finger, thumb, iris, face, or other biometric feature to unlock that same device,â
In other words, compelling someone to use their body to unlock a phone counts as self-incrimination and is protected under the Fifth Amendment.
Clearly, this is not the final word on the issue. Until the issue is decided by the United States Supreme Court â likely several years from now â law enforcement will continue to compel criminal suspects to provide biometric features to unlock their smartphones.
So, for Fifth Amendment purposes, using an âold schoolâ password â not biometrics â is still the best way to protect your data.
If you find yourself in a legal situation involving a search and seizure of your person or property, you need a criminal attorney with deep legal knowledge and a willingness to fight on your behalf. At Halberg Criminal Defense, our team approach puts the firmâs collective knowledge and experience on your side. Our lawyers are available 24-7 â Call us at 612-DEFENSE (612)-333-3673.