Hackers and other security threats may not be the only way into your smartphone. Courts and local police can get a warrant if you use something you have instead of something you know. The Fifth Amendment prohibits the government from compelling a witness to testify against oneself. You are clearly protected against revealing your smartphone’s passcode under the Fifth Amendment, but if you utilize Apple’s Touch ID or other fingerprint lock feature on your smartphone, a court or police officer could legally compel you to use your fingerprint to unlock it. If your phone is locked using a passcode, no one can legally compel you reveal your passcode and unlock your phone.
There is a major difference between a passcode and a fingerprint as a passcode under the law. You have the right not to reveal your thoughts, which includes a passcode, but your fingerprints are biometric identifiers, not a statement. Unlike a passcode, a fingerprint cannot be considered a form of speech and criminals cannot invoke the Fifth Amendment to avoid using their fingerprint to open their phones. It is for that reason why a person must consent to fingerprinting when they get arrested, but can retain their right to remain silent.
The Fifth Amendment protects information, but it does not shield physical things available for production. Using a biometric identifier- your fingerprint- as the key to your information puts it in the realm of police power to produce. Authorities are gaining access to devices that use biometric identification systems, like Apple’s Touch ID, by getting warrants to force people to use their finger to unlock their phones. Recently, a federal judge in Los Angeles signed a warrant allowing the FBI to force a woman to use her finger to unlock her iPhone seized from her boyfriend’s home, an alleged gang member. This was the first time a suspect was forced to unlock an iPhone using Touch ID in a federal case.
Courts are starting to reevaluate long-settled legal issues because of the sheer amount of information smartphones may expose about its users’ lives. This type of privacy concern may result in tighter restrictions for police looking to obtain a search warrant as more criminal investigations involve accessing personal devices like smartphones.