Police officers can force you to unlock your smartphone with your fingerprint – but they can’t force you to unlock it with your pass code, according to a Virginia Beach Circuit Court judge ruling this week.
The decision does not have legal authority outside Virginia, but may set a precedent for courts to follow throughout the country, as the judicial system begins to face a host of new questions regarding fast-developing technology, smartphones, and privacy.
The ongoing case in Virginia centers around David Baust, an Emergency Medical Services captain, who in February was charged with trying to strangle his girlfriend, according to The Virginia-Pilot. Prosecutors said the defendant may have recorded the alleged attack and the video might be accessible from his smartphone. Prosecutors wanted the judge to force Baust to unlock his phone, which is passcode protected, while Baust’s attorney argued passcodes are protected by the Fifth Amendment’s prohibition of forced self-incrimination.
The judge agreed with Baust, but also ruled that being forced to give police a fingerprint to unlock a smartphone is the same as providing police a DNA or handwriting sample, which the law permits. “We can’t invoke the privilege against self-incrimination to prevent the government from collecting biometrics like fingerprints, DNA samples, or voice exemplars,” wrote Marcia Hofmann in Wired last year. “Why? Because the courts have decided that this evidence doesn’t reveal anything you know. It’s not testimonial.
Rather than what you know, physical keys or keys based on biology are items you have and things you are—not information you know or remember. A pass code requires the defendant to divulge knowledge, which the law protects. Unlike a passcode, you can’t say “I forgot” when asked for your fingerprint.
This Virginia ruling comes only months after the Supreme Court unanimously ruled this summer that police could not search a person’s cell phone in most situations without a search warrant. And the case follows Apple and Google’s announcement that their new operating systems encrypt phones so that even these companies would not be able to access a user’s personal data.
Though these developments have put the FBI in a huff and are part of the public’s healthy right-to-privacy blowback in the post-Snowden era, the Virginia ruling carries a dual message: your constitutional rights are guaranteed, but don’t think putting your trust in technological developments are a substitute for personal diligence.
That fingerprint feature on your phone is pretty cool and convenient, but provides shallow protection when you need it most.
