U.S. courts at odds over Constitutional protection of biometric device locks

A pair of recent rulings in U.S. court on whether the compulsion of biometrics by law enforcement to access personal devices such as smartphones violates Fifth Amendment protections shows a judicial split on the subject, according to the New York Law Journal.

Early in 2019, Northern District of California Judge Kandis Westmore ruled that biometrics such as fingerprints and facial images for device unlocking are testimony, rather than physical evidence. Six months earlier in the nation’s capital, Magistrate Judge G. Michael Harvey ruled the opposite, but set out three conditions for the use of suspect biometrics to unlock a device.

Fried Frank Harris Shriver & Jacobson Partner Evan T. Barr writes that the judge in the latter case found the subject’s biometric features analogous to the key to a wall safe, more than to the numerical combination of a safe, and is thus permissible to compel. In security architecture terms, however, something you have and something you know are both considered distinct forms of information from something you are (such as biometrics).

“The Northern District of California probably has the better of the argument and its reasoning will likely be followed by more courts in the future,” Barr argues in the article’s conclusion. “Electronic devices have always included a password option. A biometric feature such as a fingerprint obviates the need to expend mental energy on a password but that is a meaningless distinction in the 21st century. From a functional standpoint, enabling a biometric feature is still a deliberate measure requiring a modicum of effort which is intended to accomplish the same purpose as a traditional passcode: protecting enormous quantities of private information from inadvertent or unauthorized disclosure.”

Barr notes that high-tech spoofs may enable law enforcement to unlock devices without forcing biometric input, and that the Stored Communications Act, search warrants and subpoenas provide the government with many tools with which to access personal electronic devices.

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