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Biometrics Cannot Be Compelled

By George Khoury, Esq. on January 16, 2019 | Last updated on March 21, 2019

A judge in the Northern District of California has issued an order denying a search warrant due to the warrant seeking to go too far when it comes to smartphones and biometrics.

The warrant not only sought the inspection of smartphones belonging to the individuals identified in the warrant, but also sought to search all smartphones of all individuals discovered on the premises covered by the warrant, and in doing so, would have required those individuals to provide the necessary biometric data, such as a fingerprint, or face, to unlock the device. Judge Kandis Westmore said no.

Limits Are Warranted

As Judge Westmore explains, smartphones in our modern era contain more information than any device or container from any previous era. As such, she explains that these devices should not be something that law enforcement get carte blanche to rummage through.

While the warrant may not have exceeded its scope by requesting to search the devices of the individuals specifically listed in the warrant, searching the phones off all persons on the premises, as the judge noted, runs afoul of the Fourth and Fifth Amendment.

Most notably, Judge Westmore compared biometric passkeys to traditional passwords, and actually grappled with the issue of "whether the use of a suspect's biometric feature to potentially unlock an electronic device is testimonial under the Fifth Amendment."

Going against prior decisions holding that biometrics could be compelled, Judge Westmore found that biometric passkeys are testimonial and cannot be compelled under the Fifth Amendment. She explained that a biometric passkey, particularly when used for a smartphone, has the potential to say quite a bit about a case.

"Thus, the act of unlocking a phone with a finger or thumb scan far exceeds the "physical evidence" created when a suspect submits to fingerprinting to merely compare his fingerprints to existing physical evidence (another fingerprint) found at a crime scene, because there is no comparison or witness corroboration required to confirm a positive match. Instead, a successful finger or thumb scan confirms ownership or control of the device, and, unlike fingerprints, the authentication of its contents cannot be reasonably refuted."

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