The Fourth Amendment right of the people “to be secure in their persons, houses, papers, and effects” has been center stage in debates over technology that scarcely could have been imagined at the time it was written. See, e.g., Carpenter v. United States, 138 S. Ct. 2206 (2018); United States v. Jones, 565 U.S. 400 (2012). With less fanfare, however, the Fifth Amendment has emerged as another critical consideration in recent cases focused on the protection of information accessible only through biometric scans (such as fingerprint or facial recognition). In the latest example of this trend, the U.S. District Court for the Northern District of California found that the Fifth Amendment right against self-incrimination prohibited the compelled use of biometric smartphone unlocking features, such as fingerprint, thumbprint, facial, or iris recognition, in In the Matter of the Search of a Residence in Oakland, California, No. 4-19-70053, 2019 WL 176937 (N.D. Cal. Jan. 10, 2019). Cases like this one read the right even more broadly than those dealing with the compelled production of passwords. Practitioners should monitor this ongoing judicial dialogue about how the Fifth Amendment should apply to issues newly arising in the information age.
The Northern District of California’s Fifth Amendment analysis in Oakland
In Oakland, the Government applied for a warrant authorizing investigators to compel any individual present at a residence connected to two extortion suspects to utilize biometric features to unlock digital devices found at the residence. Relying on recent U.S. Supreme Court decisions directly addressing the Fourth Amendment, including Carpenter, U.S. Magistrate Judge Kandis A. Westmore ruled that law enforcement could not force suspects to use biometric features to unlock digital devices because using such a feature would be testimonial for purposes of the Fifth Amendment’s protection against self-incrimination. In addition, Judge Westmore ruled that the “foregone conclusion” exception did not apply. She thus denied the warrant application.
In her analysis of whether using biometric features would be testimonial, Judge Westmore was mindful of the fact that “technology is outpacing the law” in some areas. She noted the U.S. Supreme Court’s direction in Carpenter to take technological advances into account when addressing constitutional issues and noted that courts “have an obligation to safeguard constitutional rights and cannot permit those rights to be diminished merely due to the advancement of technology.” Continue Reading