Fifth Amendment Does Not Protect Against Biometric Phone Unlock, Says 9th Circuit Appeals Court

The U.S. Court of Appeals for the 9th Circuit has ruled that police officers can compel a suspect to unlock their phone using a fingerprint without violating the Fifth Amendment’s protection against self-incrimination.

The decision comes from a case involving Jeremy Travis Payne, a parolee who was arrested and charged with possession with intent to distribute various controlled substances. The court argued that using a fingerprint to unlock a phone is similar to other non-testimonial procedures like blood draws or fingerprinting during booking, which do not require the suspect to reveal any knowledge they might have.

The court rejected Payne’s argument that using his thumbprint was a testimonial act because it confirmed his ownership and access to the phone’s contents. It was determined that this act did not force Payne to communicate any facts or knowledge about the contents of his phone or their potential incrimination. The court emphasized that its decision was specific to the circumstances of this case, noting that outcomes could differ in other situations where biometric data is used.

The ruling also briefly touched upon the Fourth Amendment, stating that the search of Payne’s phone was lawful under a general search condition mandated by California law, which allows the suspicionless search of any property under a parolee’s control.

In recent years, several U.S. court cases have tackled the complex issue of whether police can compel criminal suspects to unlock their phones using biometrics, such as fingerprints or facial recognition. These rulings have varied widely, reflecting the evolving understanding of digital privacy and self-incrimination rights.

For instance, in the 2014 Commonwealth v. Baust case in Virginia, the court decided that while police could not compel a suspect to disclose a passcode (viewed as testimonial because it involves revealing knowledge), they could require the suspect to unlock their phone using a fingerprint. This was likened to providing physical evidence such as a DNA sample or a physical key, which are typically outside the scope of Fifth Amendment protections. Conversely, in the 2019 United States v. Grant case in California, a federal judge ruled against allowing law enforcement to force a suspect to unlock their phone using any form of biometrics. The ruling highlighted that such actions could provide access to personal data, potentially infringing on Fifth Amendment rights if unlocking the phone reveals incriminating information known only to the user.

These cases, among others like State of Minnesota v. Diamond and a 2017 federal case in Washington, D.C., reflect the judiciary’s struggle with balancing law enforcement interests with privacy rights in the digital age. Courts are grappling with distinguishing between what constitutes non-testimonial physical evidence and what crosses into the protected realm of revealing the contents of one’s mind.

Source: Ars Technica

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April 19, 2024 – by Cass Kennedy