The Fifth Amendment’s right against self-incrimination protects you against revealing passwords — biometrics are a different story.
In February 2016, the United States District Court for the Central District of California grappled with a contemporary issue complicated by technology. Which should society value more: privacy or security? In this encryption dispute, the FBI wanted Apple to create a software that would grant an unlimited number of attempts to unlock an iPhone 5C recovered from one of the shooters in the San Bernardino attack in December 2015.
Perhaps the institution of law has not kept up with the exponential advances made in technology. United States courts are unable to determine whether and to what extent they can compel manufacturers to aid in unlocking cell phones whose contents are cryptographically protected. According to an article posted on The Intercept, Apple has received and objected to or challenged at least 12 other orders issued by the United States district courts under the All Writs Act of 1789.
The FBI-Apple dispute pulled technology back under the lens of scrutiny, particularly involving the security of biometric technology. While anyone suspected of a crime can refuse to turn over passwords under the Fifth Amendment, biometrics is an exception. Biometrics may be convenient and arguably secure considering the relative uniqueness of one’s fingerprint, but the technology potentially undermines your legal rights.
If your phone is locked with a passcode, no one can legally compel you to unlock it. However, a court or police officer could legally compel you to press your finger onto your smartphone to unlock it. Under the Constitution, you have a right not to reveal the contents of your mind, such as a password. Your fingerprints, though, are a part of who you are and are exposed to the public every single day. As a result, when a person is arrested, they must consent to fingerprinting while given the right to remain silent. Ultimately, thoughts are protected, but biometric identifiers, including fingerprints, face, and even your voice, are not.
Your fingerprints might protect your emails and text messages from a nosy friend, but it does not exempt physical things in the world available for production. If a key to the information on your phone or computer is a physical key or a biometric identifier, it is within the realm of police power to produce.
This privacy concern is not restricted to individuals either. Companies may be at risk as more employees download delicate work-related information and data onto their personal phones and laptops. Company information and data could be a casualty of the legal protection problem that persists in biometric technology. If a fingerprint is all that is needed to access an employee’s device, a company’s information is already out of its hands.