In the old days people had to unlock their phones with a passcode or a password. Phone makers like Apple made that antiquated and obsolete when the introduced TouchID in 2013 starting with the iPhone 5S. TouchID was (and is) a biometric fingerprint recognition system that allowed you to unlock your phone (and later your tablet and then your computer) with your fingerprint. Then Apple upped the ante in 2017 when introduced FaceID. Instead of scanning your fingerprint, the phone would scan your face, which was touched as more secure and convenient. All of this progress is undeniably convenience (unless due to COVID-19 you wear gloves or a facemask or even sometimes if you get a haircut, etc), but it comes with a dark side.

While you can’t be forced to give up a good old-fashioned passcode or password, since the early days of TouchID (and other fingerprint unlocking systems on other phones) the police have been forcing people to give up their fingerprint (or face) to unlock the phone. The thinking went like this – a code or password requires you to speak (to tell the officer the code). According to the 5th Amendment to the United State Constitution, you can’t be forced to incriminate yourself, therefore you cannot be forced to tell the police your passcode/word. Your fingerprint (or face), however, doesn’t require you to speak, so it doesn’t implicate the 5th Amendment. Police made this argument over and over and judges agreed, signing warrants across the country compelling people to give up their biometric passwords.

Just recently, however, a federal judge in California ruled that police could not force people to unlock their cellphones using biometric recognition. Judge Kandis Westmore explained that fingerprints and facial scans are essentially similar to testimonial evidence (testifying – speaking – in court).

“If a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device.”

So in in the Northern District Of California you cannot be forced to give up the information conveyed by your fingerprint or facial scan – your password even though you don’t have to, technically speaking, be forced to speak. This is interesting, for sure, but not binding on Texas judges. Our courts are separated by state and federal systems, and while the federal system can overrule the state system, only the US Supreme Court’s opinion is binding on every court across the country. So far the US Supreme Court hasn’t opined on this and neither has the 5th Circuit Court of Appeals (the federa appeals court that controls Texas, Louisiana, and Mississippi). So for now, until this issue works it’s way to the Supreme Court (or a Texas federal court takes up this issue), police will likely continue to go to judges with warrants to compell people to give up their biometric passwords and judges will likely continue to side with police.

So think twice about whether you enable the FaceID or TouchID unlock feeature on your phone. Is there anything on your phone that you’d like to keep private. Text messages, pictures, voicemails? Whether your holding evidence of a crime or you just don’t want the police having access to your private (and potentially embarassing) personal information, you might want to think about disabling that convenient feature and going back to the old-fashioned strong password.

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