Suspects may be forced to provide their biometric data, such as fingerprints, to police officers with a warrant after the girlfriend of an Armenian gang member was made to unlock a fingerprint-locked iPhone with her thumb.
The case has led to a moral debate on whether the ability to issue warrants for such an action violates the 5th amendment’s protection against self-incrimination, but though giving up passwords may fall under this protection, some are arguing that biometric data does not.
“Unlike disclosing passcodes, you are not compelled to speak or say what’s ‘in your mind’ to law enforcement,” said Albert Gidari, director of privacy at Stanford Law School’s Internet and Society Centre. “‘Put your finger here’ is not testimonial or self-incriminating.”
Susan Brenner, a law and technology professor at the University of Dayton disagrees, however.
“It isn’t about fingerprints and the biometric reader, [it’s about] the contents of that phone, much of which will be about her, and a lot of that could be incriminating,” she explained. “By showing you opened the phone, you showed that you have control over it. It’s the same as if she went home and pulled out paper documents — she’s produced it.”
The legality of accessing and opening up locked technology has been an extremely split debate since the San Bernardino shootings and the standoff between Apple and the FBI that has ensued. The FBI was seeking access to one of the shooters’ passcode-locked iPhones, but due to a growing user privacy debate, Apple were uncomfortable with giving the government backdoor access into its customers’ phones.
“Before cellphones, much of this information would be found in a person’s home,” said lawyer and criminal justice professor George M. Dery III. “This has a warrant. Even though it is a big deal having someone open up their phone, they’ve gone to a judge and it means there’s a likelihood of criminal activity.”
Though there is no firm confirmation that police attempts to access locked technology is increasing, there has definitely been a rise of reported cases on the matter since the San Bernardino iPhone dispute. In March, the FBI was granted permission to access a locked iPhone and iPod that was reported to possibly contain details about an Arkansas murder trial, and the matter of personal privacy as well as the morals and legal technicalities surrounding it has been a widely covered issue in a growing generation of secure technology and privacy debates.