A Face Is Worth a Thousand Words: The Fifth Amendment Implications of The Ability to Unlock Your Phone with Your Face - Fordham Intellectual Property, Media & Entertainment Law Journal
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A Face Is Worth a Thousand Words: The Fifth Amendment Implications of The Ability to Unlock Your Phone with Your Face

A Face Is Worth a Thousand Words: The Fifth Amendment Implications of The Ability to Unlock Your Phone with Your Face

Apple’s facial recognition, which allows users to simply look at a phone to open it, has finally been used by law enforcement to  access a device. Police used a search warrant to compel a man from Ohio to unlock his phone with his face.1 While not altogether surprising that this would occur, it is another occasion where technological advances, while helpful, can  cost us our privacy rights.

The issue of law enforcement needing to access information from you that is self-incriminating is not new. In 1988, this issue arose in Doe v. United States,2 when police needed Doe to give permission to his bank to send Doe’s account information to the government.3 Doe argued that this would be self-incriminating, which he is protected from under the Fifth Amendment.4 The court held that “in order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.”5 In a crucial footnote, the court recognized the difference between simply handing over access and giving away “contents of an individual’s mind,”6 which would be testimonial, and thus fall under Fifth Amendment protections of not having to testify against yourself.7 Thus, information in your mind is protected, but simply giving access may not be.

As technology evolved, the question shifted from the keys of a safe to a passcode for a phone.8 Is the knowledge of the passcode testimonial, and thus protected under the Fifth Amendment, or is it like a key, just a way of accessing the phone, and thus not protected?

The Supreme Court has never dealt with this particular issue, so the state courts were left to handle it.9 For most of the cases, courts have ruled that passcodes are protected under the Fifth Amendment, as a passcode is information that is in your head.10 A Florida District Court, however, ruled that giving a passcode is simply giving access to information that law enforcement is seeking, and that the passcode itself does not supply the government with any knowledge that the suspect has. Therefore, it is not protected under the Fifth Amendment.11

In 2013, Apple began installing fingerprint scanners into their iPhones.12 One simply puts their finger on the home button, and the phone is unlocked. A question arose: Could law enforcement require a defendant to give their fingerprint to open the phone? Most courts believe that biometric verification, or using physical aspects of a person to identify them, is not protected under the Fifth Amendment.13 This would include a fingerprint.14

Finally, in 2017, Apple introduced facial recognition on their phones, where you can simply open the phone by showing your face.15 So, of course, the issue became whether the police may force a suspect to open a phone with their face. In 2018, for the first time, law enforcement used a warrant to get a suspect to unlock their phone with their face.16

Facial recognition is a simple way of opening your phone. It is much easier than having to type in digits, and your fingers do not have to be dry to unlock the phone. However, your phone is now more easily accessible by law enforcement, as the knowledge component of encryption technology in Apple devices shifts from knowledge-based to physical-features-based. While we are constantly trading our privacy for convenience,17 we should remember that when we decide how we will unlock our devices, we are also deciding the limits of our Fifth Amendment rights.

  1. Thomas Brewster, Feds Force Suspect to Unlock an Apple iPhone X with Their Face, Forbes (Nov. 1, 2018, 8:52 PM), https://www.forbes.com/sites/thomasbrewster/2018/09/30/feds-force-suspect-to-unlock-apple-iphone-x-with-their-face/#4d845b6d1259. [https://perma.cc/Y6YQ-TNVY ]

  2. 487 U.S. 201 (1988).

  3. Id. at 203.

  4. Id. at 207.

  5. Id. at 210.

  6. Id. at 210, n.9.

  7. Id. at 210.

  8. See Jesse Coulon, Privacy, Screened Out: Analyzing the Threat to Individual Privacy Rights and Fifth Amendment Protections in State V. Stahl, 59 B.C. L. Rev. E. Supp. 225, 236 (2018).

  9. Id. at 237.

  10. Kendall Howell, The Fifth Amendment, Decryption and Biometric Passcodes, LawfareBlog (Nov. 1, 2018, 9:01 PM), https://www.lawfareblog.com/fifth-amendment-decryption-and-biometric-passcodes. [https://perma.cc/AY5M-QTZ3]

  11. State v. Stahl, 206 So. 3d 124, 134 (Fla. Dist. Ct. App. 2016).

  12. Marco Tabini, iPhone 5s will let you use your fingerprints for easier security, Macworld (November 1, 2018, 9:25 PM), https://www.macworld.com/article/2048485/iphone-5s-will-let-you-use-your-fingerprints-for-easier-security.html. [https://perma.cc/LL8Z-N9K7]

  13. Howell, supra note 10.

  14. Id.

  15. Macworld Staff and Glenn Fleishman, Face ID on the iPhone X: Everything you need to know about Apple’s facial recognition, Macworld (Nov. 1, 2018, 9:31 PM), https://www.macworld.com/article/3225406/iphone-ipad/face-id-iphone-x-faq.html. [https://perma.cc/AH3K-QLXV]

  16. Sidney Fussell, The Newest Password Technology Is Making Your Phone Easier for Police to Search, The Atlantic (Nov. 1, 2018, 9:40 PM), https://www.theatlantic.com/technology/archive/2018/10/face-recognition-iphone-unlock-police-force/572353/. [https://perma.cc/S84H-C94J]

  17. Ethan Sacks, Alexa privacy fail highlights risks of smart speakers, NBC News (Nov. 1, 2018, 9:56 AM), https://www.nbcnews.com/tech/innovation/alexa-privacy-fail-highlights-risks-smart-speakers-n877671. [https://perma.cc/6CTV-CWCW]; see also Andrew Griffin, Facebook Hit with Huge Fine for Failing To Protect Its Users’ Privacy, Independent (Nov. 1, 2018, 10:20 PM), https://www.independent.co.uk/life-style/gadgets-and-tech/news/facebook-fine-cambridge-analytica-data-privacy-security-hacking-a8600631.html. [https://perma.cc/74HX-WT8P]

Jenny Brejt

Jenny S. Brejt is a second year J.D. Candidate at Fordham University School of Law and a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal. She holds a B.S. in Accounting from Brooklyn College of the City University of New York.