Locking your phone with a fingerprint is more secure than using a password, right? Maybe from a hacker, not from the law. In a Virginia Circuit Court opinion handed down on October 28, 2014, Judge Steven C. Fucci ruled that fingerprints are not included in the Fifth Amendment’s protection against self-incrimination, and as such, the government may compel a criminal defendant to give up his fingerprint in order to unlock a cell phone.
According to news outlets, Judge Fucci reasoned that giving police a fingerprint is akin to providing DNA, a handwriting sample, or an actual key, which the law in Virginia permits. In contrast, if the police were seeking a password or passcode to unlock a phone, it would be prohibited by the Fifth Amendment because it would require the criminal defendant to divulge his personal knowledge.
This ruling comes in the case of David Baust, an individual accused of domestic violence. Police obtained a search warrant for Baust’ phone, believing it contained a recording of an attack. Baust refused to unlock the phone saying that the police could access embarrassing items on the phone unrelated to the case. Interestedly, the phone has been shut off while in police custody and may require a password in addition to a fingerprint to be unlock. If so, prosecutors would have to tackle the issue of passwords and the Fifth Amendment in the appellate court.
While this ruling has garnered national attention, it remains to be seen whether the rest of the state and courts in other jurisdictions will follow suit. Regardless, it’s another example of the interesting intersection between law and technology.