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Forced biometric unlock of suspect device blocked by another California judge

Using a biometric such as fingerprint recognition to unlock an electronic device is “inherently testimonial,” and as such is protected in the U.S. by the Fifth Amendment, according to a U.S. magistrate decision reported by Law.com.

The decision by Judge Virginia Demarchi of California’s Northern District agrees with some previous decisions on the issue, and disagrees with others, as a Supreme Court judgement looks increasingly necessary to resolve the running debate between law enforcement and civil liberties advocates. A similar ruling has been made previously in the Northern District of California, but Demarchi requested briefings from the U.S. attorney’s office and the federal public defender on the Fourth and Fifth Amendment implications of compelling a suspect to use biometrics to unlock a device. Prosecutors noted that the previous decision in the district was made without a briefing, but Demarchi agreed anyway.

“Here, compelling an individual who is a target of the investigation to use his or her finger or face to unlock a device represents incriminating testimony within the meaning of the Fifth Amendment because it amounts to an assertion of fact that the individual has the ability to unlock the device; which in turn makes it more like that the individual locked the device and put the material sought by the warrant on the device,” wrote Demarchi, for the ruling in a San Jose court.

Former Electronic Frontier Foundation surveillance specialist Hanni Fakhoury was among public defenders claiming that biometric device unlocking is protected on grounds that the action asserted the individual’s control over the electronic device and its contents. Legal observers have previously suggested that the argument taken by the Northern District of California “will likely be followed by more courts in the future.”

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