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Judges May Compel Criminal Defendants to Provide Their Fingerprints to Unlock Fingerprint-Secure Smartphones and Devices

In our over-vigilant society, security and privacy are of the utmost importance to us. This is particularly important since we no longer leave our valuable information in file cabinets, but place them in clouds and on our phones, hovering in the ethereal until they are needed. Companies like Apple and Android, in an attempt to be more security-friendly, have updated their software and hardware to better protect our information and make our passcodes as personal as it can get: our fingerprints.

Fingerprints and other ID-specific security were included on phones and devices starting around 2013 in hopes of making sensitive information protection as personal as it can get. As with all technology, it was only a matter of time before it was put to a test in the court of law. In other words, how might a fingerprint-secured device be treated in criminal proceedings?

Precedent Being Made: Judges May Compel Fingerprints Without Violating Fifth Amendment

The answer was put to the test in 2014, when a Virginia judge held that a law enforcement had the power to force users to use their fingerprints to unlock the smartphones and access the stored data held within. In February 2016, a federal judge signed a search warrant requiring a user to unlock her smart phone with her fingerprint, which marked the first time a federal agency had been given this power. This marked a significant moment, one that most likely will either change how companies make fingerprint-secured devices.

Why Fingerprints are Not Protected under the Fifth Amendment

In previous case law, the courts ruled that pursuant to the Fifth Amendment – which protects citizens from self-incrimination in criminal and civil proceedings – the government may not compel another person to give up their PIN number or passcode to locked devices. The courts, however, have never found biometric indicators to fall under this Fifth Amendment protection. Biometric indicators are external elements such as a person’s DNA, likeness, handwriting sample, voice, etc. that are not protected under the Fifth Amendment. This is because, unlike a memorized PIN, password, or passcode, they are not qualities that are kept in one’s mind. A person’s DNA, voice, handwriting or their fingerprint, for example, is something external that may be observed by others.

This distinction makes all the difference in the world for those who lock their valuable data in fingerprint-stored devices, especially with the ease and speed that police officers and law enforcement enjoy when obtaining a warrant.

Movement to Make Biometric Data, like Fingerprints, Protected Under the Fifth Amendment

There has been a movement to push for greater protection for biometric data, especially since there is this connection between biometric data and secured information. To many, the Fifth Amendment should protect against the compelling of a fingerprint because it proves not only that the criminal information exists, but that the criminal information exists under the dominion of the person who owns the fingerprint. That is as close to self-incrimination as it can get.

In the past, biometric data gave police officers a closer look at external information about a person. This biometric data, however, only gives information related directly to the biometric indicator. A person’s handwriting sample only says how they write and what their writing looks like; it does not provide an in-depth look into their criminal intentions. A fingerprint when used to secure a device no longer is just a fingerprint – it’s an opening to all of your private information and data, something not usually expressed to others externally in and of itself.

Experienced Criminal Defense Attorney in Fort Lauderdale

Fingerprints and biometric data are currently not protected under the Fifth Amendment. However, your memorized passcodes, passwords, and PIN numbers are protected and you may not be compelled to share them. If you or a loved one has been asked to provide your password to law enforcement, it is important to speak with an experienced defense attorney like Kevin J. Kulik. Contact Kevin J. Kulik today for a free and confidential consultation in the Fort Lauderdale area.

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