Open sesame: Law enforcement can compel you to unlock your smartphones by fingerprint, and it's totally legal

The Fifth Amendment to the U.S. Constitution protects individuals from self-incriminating themselves. Indeed the phrase “Pleading the Fifth” is a staple in any given crime-drama TV show. Essentially, as long as one invokes their right and does, in fact, remain silent throughout the entire legal process, they can not be punished for their lack of words. Things change, however, if they give up that right by talking, and then later remain silent when asked specific questions.

These days however, there is an awful lot of incriminating evidence that can be obtained without any mouth movements made but rather the very finger by which your soy latte was paid. Embedded biometric security devices, like the fingerprint sensors located on smartphones, are a simple one-step work-around to problematic passwords or patterns. At the same time however, their instant-in also makes them a venerable treasure trove of data for law enforcement.

Last week, the Los Angeles Times ran a story detailing the most recent arrest of 29 year-old Paytsar Bkhchadzhyan, a woman with “a string of convictions”. She was ordered by law enforcement to unlock her iPhone via its embedded fingerprint sensor in relation to charges of identity theft . The issue at hand is rather clear cut: whereas providing a passcode to unlock a phone would violate the defendant’s legal rights, the procurement of something something more basic – blood or fingerprints – is perfectly acceptable.

To search

When a person is arrested, law enforcement officers must have or obtain a court warrant in order to search the suspect’s property. This holds true of mobile phone contents as well, thanks to a SCOTUS ruling back in 2014. A more complete set of guidelines was summarized by FindLaw, which posted a list of important provisions. As law enforcement officers already have the legal right to take a suspect’s fingerprints – indeed such is a major step in “booking” someone – this is not seen as in violation of the Fifth Amendment, thus from the standpoint of the law, it is acceptable for a suspect to be compelled to unlock their phone by fingerprint.

The question is how frequently this trend will increase. While some have pointed out that, as of now, there have been relatively few instances when someone in police custody was required to unlock their device with a fingerprint, the fact is that until recently, most devices haven’t had fingerprint readers to begin with. Google itself only added native support for such a security measure last October with the official roll-out of Android 6.0 Marshmallow.

Much to do about something

Still, there is perhaps a larger issue at hand, namely just how much information can be gleaned from something as commonplace as a smartphone. Susan Brenner, a law professor at the University of Dayton, told the Los Angeles Times that, “It isn’t about fingerprints and the biometric readers…the contents of that phone, much of which will be about [Ms. Bkhchadzhyan] and a lot of that could be incriminating.”

Professor Brenner continued, adding that, “by showing you opened the phone, you showed that you have control over it. It’s the same as if she went home and pulled out paper documents — she’s produced it.”

Offering another bit of insight on the matter, George M. Dery III, a lawyer and criminal justice professor at California State University, Fullerton was quoted by the Los Angeles times, saying, “Before cell phones, much of this information would be found in a person’s home. This has a warrant. Even though it is a big deal having someone open up their phone, they’ve gone to a judge and it means there’s a likelihood of criminal activity.”

On the opposing side of the argument, Director of Privacy at Stanford Law School’s Center for Internet and Society, Albert Gidari, told The Los Angeles Times that, “unlike disclosing passcodes, you are not compelled to speak or say what’s ‘in your mind’ to law enforcement. Put your finger here’ is not testimonial or self-incriminating.”

A change for companies coming?

There is one more issue to consider as well, that of timing. As Ars Technica reports, “iPhones equipped with [a fingerprint] scanner, if that feature is enabled, can only can be unlocked via fingerprint if the phone hasn’t been unlocked within 48 hours. If the phone is rebooted or has been sitting for longer than 48 hours, the phone’s passcode is required.” This means that timing is crucial in these matters, at least with respect to Apple. Many phones running Android, however, also request a passcode or such to unlock when they are rebooted as well.

As the rate of these cases increases, could law enforcement pressure OEMs to alter their security measures to work around these kinds of issues? Even when they have been put in place to, say, protect the privacy of the very law-abiding citizens who have purchased their phones?

What do you think? Leave your comments below.