Police 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 circuit court judge in Virginia.
As one of the first ones to deal with fingerprints and cellphones, this decision confirms that police can access to a locked phone with legal means if they need to. It also shows that PIN or a password might enjoy more protection than a fingerprint; an odd result of this decision.
Virginia Beach Circuit Court Judge Steven Frucci ruled that a criminal defendant can be compelled to give up his fingerprint and unlock his cellphone in the course of a criminal investigation; because that’s akin to a DNA sample or have a physical key to a lock; both which police can compel a citizen to turn over to police. .
On the other hand, police can’t force a defendant to give up his/her passcode or PIN, because that’s considered “knowledge” instead of a physical object. Knowledge is protected by the 5th Amendment. However, there have been cases where a defendant was forced to turn over his/her password to a computer; so there is no unanimous answer to this issue yet.
The ruling came out of an investigation of David Baust who was charged in February with attempting to strangle his girlfriend. Baust’s attorney tried to stop prosecutors from getting access to his client’s phone, where he could be storing a video of the alleged attack.
While the ruling in Virginia was not the binding as a Supreme Court decision would be, it established the legal precedent upon which other courts can follow. When Apple announced TouchID, its fingerprint scanning technology to unlock a phone with a fingerprint, some experts warned of this risk.
The central issue is that self-incrimination, which would cover turning over your PIN/password as a statement, is protected by the 5th Amendment, while biometrics such as a fingerprint or DNA do not share Constitutional protections.
The Supreme Court has never ruled on this specific issue, but in a case involving a defendant’s right not to give up a his blood sample in 1966, the court ruled that “the Fifth Amendment offers no protection against compulsion to submit to fingerprinting.”
But the Virginia Court did note that if the phone was locked by both a fingerprint as well as a PIN/passcode that the defendant would not be compelled to unlock it for police under Frucci’s ruling.
This ruling comes on the heels of a controversy surrounding Apple and Google’s new encryption protections for the iPhone and Android phones; which the government and specifically the FBI have criticized highly as hindering police investigations.
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