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Another federal court says biometrics can be used to open devices if a warrant has been issued

Another federal court says biometrics can be used to open devices if a warrant has been issued
 

Biometric systems look weaker in terms of preventing law enforcement agencies from accessing someone’s digital property after a federal court ruling in Kentucky July 2.

It is the latest court case in the United States finding that the government can compel someone to open their biometrically locked electronics in response to a lawful search warrant, just as a suspect can be compelled to give up fingerprints.

The U.S. District Court for the Eastern District of Kentucky held that neither the Fourth nor the Fifth Amendments necessarily protect an individual from divulging digital information. The Fourth Amendment protects against unreasonable search and seizure; the Fifth protects against self-incrimination.

Indeed, the court said that all biometrics are the same as fingerprints, which, according to Bloomberg Law, can be recorded as part of a legal search. Legal searches require reasonable suspicion that someone has committed a crime described in a warrant.

Suspects cannot be made to give law enforcement officials a passcode. Forcing someone to utter a code would be self-incriminating testimony, but biometrics, according to this ruling, are evidence that can be gathered.

In April last year, a U.S. federal district in Massachusetts said the federal Bureau of Alcohol, Tobacco, Firearms and Explosives can compel a suspect to use their biometrics to unlock a digital device with a simple warrant.

The judge in the case said that mobile phone communication was part of the evidence leading bureau agents to the suspect in question, an alleged illegal firearms trafficker in Boston. It was deemed reasonable to think incriminating evidence would be found on the phone found in the suspect’s apartment. Warrant in hand, the agents ultimately were able to unlock the phone with the user’s biometrics.

This is not the end of the question, however.

A California judge ruled in January 2019 that biometrics (at least in the form of fingerprints and face scans) are, in fact, testimony. As such they are protected under the 5th Amendment.

Ultimately, the matter will reach the U.S. Supreme Court.

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