Fingerprints and Self-Incrimination

Apple's TouchID

The LA Times ran an interesting story over the weekend about yet another iPhone-related court case in California.

Paytsar Bkhchadzhyan, the girlfriend of a suspected Armenian gang member (and a convicted felon herself) was ordered to unlock her iPhone with her finger via Apple’s biometric security feature, TouchID.

The order got the go-ahead thanks to a warrant signed by a U.S. Magistrate Judge, and therein lies the problem: U.S. law sees fingerprints as evidence, not testimony; but personal data provided through fingerprint authentication on a smartphone is tantamount to testimony. Some legal experts worry that this violates every citizen’s 5th Amendment rights.

How is this possible? Here’s how The Times explains it:

The act of compelling a person in custody to press her finger against a phone breached the 5th Amendment’s protection against self-incrimination. It forced Bkchadzhyan to testify—without uttering a word—because by moving her finger and unlocking the phone, she authenticated its contents.

Put another way, biometrically unlocking your phone links you to the data on that phone.

It gets even more convoluted when you consider that handing over a passcode rather than a fingerprint is, in a legal sense, a fundamentally different event; a fingerprint is considered evidence while a passcode is considered knowledge. This can be better explained in a 2014 Virginia trial court precedent, where a judge ruled that the accused could be compelled to provide their fingerprint but not their passcode:

The judge reasoned that providing a fingerprint was akin to giving a key, while giving a passcode—stored in one’s mind—entailed revealing knowledge and therefore testifying.

TL;DR Passcodes are more secure than fingerprints when it comes to U.S. law. Who knew?

Source: Los Angeles Times

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