“It’s well-established that suspects can’t be forced to divulge the passcodes that would enable phone access, but there is growing debate about whether biometric data amounts to the same thing.”
Another prominent court has weighed in on the question of Fifth Amendment rights with respect to biometric phone unlocking, with a federal court in Kentucky ruling that police can compel suspects to do so in the execution of a search warrant.
As Bloomberg Law reports, the ruling came in response to a federal application for search warrants aimed at letting law enforcement officers seize evidence from smartphones and computers. The US District Court for the Eastern District of Kentucky determined that police could compel a suspect to biometrically unlock a device only if they had a reasonable suspicion that the individual had committed a crime, and if they obtained a search warrant.
The ruling joins a patchwork of others across the country as law enforcement authorities have run up against the thorny question of whether forcing criminal suspects to unlock their phones with biometrics would constitute a violation of their Fifth Amendment protection against self-incrimination. It’s well-established that suspects can’t be forced to divulge the passcodes that would enable phone access, but there is growing debate about whether biometric data amounts to the same thing.
The US District Court for the Eastern District of Kentucky’s view is that it isn’t. Rather, the ruling likened compelled biometric scans to fingerprinting, which the Supreme Court has established as a form of search. On this reasoning, police need to get a proper search warrant before they can compel an individual to undergo a biometric scan.
That perspective led the court to a preoccupation with the Fourth Amendment issue of unreasonable search and seizure. The Fifth Amendment, in this court’s view, offers no protection against biometric scans as these would not be considered testimonial in nature.
Source: Bloomberg Law
July 3, 2020 – by Alex Perala