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Biometrics Now Covered by Fifth Amendment

By George Khoury, Esq. on January 17, 2019 | Last updated on March 21, 2019

The breakthrough ruling for the biometrics industry may have just occurred in a sealed matter in a federal court in Oakland, California.

Judge Kandis Westmore, in denying law enforcement a search warrant, explained that the court would not compel individuals to provide their biometric data to unlock smartphones as doing so would violate their Fifth Amendment rights because, and this is the big one, providing that biometric data is testimonial.

Cops Can't Force Biometrics

For smartphone makers and the makers of other devices that rely on biometrics for encryption or in lieu of, or in addition to, a password, this decision is big news. It may not be a pronouncement from the Supreme Court that biometrics are testimonial and cannot be compelled, but it is a first step in the right direction as far as the tech industry is concerned.

Biometrics, like fingerprints, face and eye scanners, and more, may have provided more security from the bad guys out there, but from their introduction, did not enjoy the same protection from law enforcement than an alphanumeric password. Traditional passwords, by virtue of the fact that a defendant would have to say something, fell under the protection of the Fifth Amendment, while biometric locks did not.

However, as Judge Kandis Westmore explained, compelling a person's biometrics, particularly in this day and age with all the information stored on devices, is perhaps one of the most testimonial acts you could ask a person to do.

What About Police Hacking?

Notably, if a device has a backdoor, or alternative way to get past the security, then compelling a passcode or biometric data becomes irrelevant. However, that process can be prohibitively costly. And with smartphone makers going the other direction, making it more difficult for law enforcement and bad guys to hack devices, Judge Westmore's ruling could signal a new age for biometric security.

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