The Smartphone versus the Fifth Amendment
For many smartphone users, passwords and passcodes have become a thing of the past. Since late 2013, Apple iPhone users have been able to access their phones by simply applying their stored fingerprint to the Home Button. Many Android devices offer the same feature. And now, Touch ID does more than unlock a phone. As of October 20, 2014, Apple’s Touch ID is fully integrated with Apple Pay, which allows users to make every-day purchases with a touch of their thumb.
However, in the aftermath of Virginia v. Baust, many smartphone users may soon reconsider their reliance on fingerprint ID technology.
In October, a Virginia trial judge ruled that unlike a passcode, the production of one’s fingerprint is not “testimonial communication”, and therefore, the Fifth Amendment privilege against self-incrimination cannot be invoked. Rather, the government may properly compel the production of a smartphone user’s fingerprint to unlock the user’s device. This force compulsion would ostensibly extend to any applications within a device that can be opened via fingerprint.
According to the Virginia court that decided the case, Fifth Amendment protection is implicated where the government demands the “(1) compulsion of a (2) testimonial communication that is (3) incriminating.” Virginia v. Baust. In its analysis, the Virginia trial judge relied on authority such as the 1967 case, United States v. Wade, where the Supreme Court found that biometrics such as height, weight, photograph, voice, and handwriting were not testimonial communication, and accordingly, could be compelled by the government.
The Court reasoned that the production of a passcode, on the other hand, is a “testimonial communication.” A cited authority United States v. Kirschner (2010), contrasted the hypothetical compellation of a passcode with the compellation of a writing sample. The court found in Kirschner that a defendant would not be revealing knowledge by giving a writing sample, but s/he would be revealing knowledge if s/he were compelled to recount the passcode.
Is All Smartphone Privacy Lost?:
As a trial court, the ruling in Virginia v. Baust is not mandatory law. However, as with any early caselaw in a novel and undeveloped area of the law, this opinion will likely be cited as a persuasive authority.
In the short term, we’ll have to wait to see what other jurisdictions will say about this burgeoning question. For now, the convenience of Touch ID may not be worth risk of lost privacy.