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Judge Rules Police Cannot Use Face ID or Touch ID to Unlock Suspects’ Phones

Danielle from Leaf and Core
Reading Time: 4 minutes.

Woman using Face ID to unlock her phone by a pool. Touch ID was notoriously bad at identifying wet fingers.In a surprising turn of events, a California judge has ruled that using a suspect’s face or fingerprint to unlock their phone is a violation of their Fifth Amendment rights. The Fifth Amendment, which protects Americans against self-incrimination, typically doesn’t consider your biology. People can use your fingerprints, DNA, description, and other details about your physiology as evidence. However, for the first time, a U.S. judge has ruled that a person’s face or fingerprint, when it comes to unlocking their smartphone, is off limits to police.

This is a huge legal change. Previously, police could not force you to give up a combination, pin number, or password. This would obviously be self incrimination. However, they were able to use your biometrics to unlock your phone. This is why, if you believe someone will be taking your phone, you should force it to unlock with a password by pressing and holding the power and either volume button. You should still probably do this. However, it seems one judge’s ruling could push for better device privacy in the future.

The Changes this Ruling Will Yield

The warrant police asked for was, as Northern California district judge judge Kandis Westmore pointed out, “overboard.” It was “neither limited to a particular person nor a particular device.” Police wanted to raid a house and force any person with a phone on the premises to unlock their device with their fingerprint or face. A more targeted warrant that specified a person may have gone over better with Judge Westmore.

However, the lack of focus wasn’t the judge’s only concern. The judge specifically ruled that the government does not have the right, even with a warrant to forcefully unlock a person’s phone with a face or fingerprint. This puts biometric security on par with pin based security.

“If a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device.”

– Judge Kandis Westmore, U.S. District Court for the Northern District of California

Judge Westmore pointed out that “technology is outpacing the law.” She’s right. Increasingly, biometric security is replacing password-based security. However, she believes the law was written to protect citizens’ privacy, not specifically their passcodes. This is a clear example of a more liberal interpretation of the law, one that discerns its purpose from its writing, rather than relying on outdated viewpoints from people who couldn’t imagine current situations. The writers of the constitution could not have dreamed of a world where your face could be your passcode.

Opposition and Overturning

Another district court judge could overrule Westmore’s ruling. This would revert the interpretation of the law, again making biometrics unprotected. However, that wouldn’t be the end of the story. We’ve never had anything like our smartphones in history. Portable safes with documents and data. Our founding fathers believed that such safes should be protected, but would they have felt the same if they knew everyone would have them? Likely. But would they believe that a face is the same as testimony? That could be a stretch.

And, for law enforcement, it’s out of the question. They love the fact that, until now, they’ve had unlimited access to devices that have a fingerprint or face unlock. It allows them to quickly gain access to a suspect’s phone. In some cases, this itself has lead to extortion, privacy invasions, and crimes of a sexual nature. The law wouldn’t have changed these intrusions though. These officers were already content with breaking the law.

The FBI has been adamant about unrestricted access to all electronics. They want to break encryption—the only thing that makes electronics and the internet secure—so they can get into any suspects phone they choose. This would make any Fifth Amendment rulings moot. They will continue to fight for any way to get into your phones. Law enforcement will surely oppose this ruling.

This ruling will likely be overturned. Someone will have to take their fight to the supreme court to set a national precedent. However, we could soon be on our way to having modern technology as safe in the hands of law enforcement as older technology.

When is a Fingerprint Sacred?

“The undersigned finds that a biometric feature is analogous to the 20 nonverbal, physiological responses elicited during a polygraph test, which are used to determine guilt or innocence, and are considered testimonial.”

– Judge Kandis Westmore, U.S. District Court for the Northern District of California

Specifically when does this ruling protect a suspect’s fingerprints? It seems to only cover when the fingerprint or face scan would unlock a device. In this way, the person’s device, with their information, communications, and photos is their testimony, not the fingerprint or facial scan. The idea is that the contents of the phone itself—if locked—are testimony. If your fingerprints or face were protected, police could never use evidence like cameras with facial recognition software or fingerprints left at a crime scene. Fortunately, these are not what this ruling protects. Instead, your information, if you’ve chosen to protect it using your body, is your protected testimony.

The Future

Devices are increasingly using biometric security. As password crackers, leaks, and tools like the GrayKey become more prevalent, your body itself may prove to be your best chance at retaining security and privacy. As such, we should consider protecting it in the same way we protect information we use for security, such as combinations and passwords.

It’s important to consider the purpose of the Fifth Amendment. It’s there to protect someone against forced incrimination. For Face ID, for example, police would have to pry an unwilling suspects eyes open, force them to look at the phone. Doesn’t that sound a little cruel and unusual? The Fifth Amendment protects against police using such torture in an interrogation. This isn’t A Clockwork Orange, after all.

In order to protect consumers’ security and privacy in our ever changing—and increasingly biometric—world, we have to consider your body as protected testimony, at least when it comes to extracting information from secure places. However, we must be mindful. While security and privacy are great for law-abiding consumers, it can be a blockade to justice. Victims of crimes who wish to see criminals behind bars won’t find comfort in the fact that police could take the criminal’s fingerprints to tie them to the weapon, but not to unlock their devices.

Rights vs Justice?

It’s because of this final point that we likely won’t see judges upholding this protection. They saw no reason to change things before, and judges are notoriously slow to change. This is a right that stands in the way of upholding the law. There will always be a delicate balance between rights and protection. If you truly want something protected, if you truly consider it your constitutionally protected testimony, use a long passcode. Lock your device before handing it over to anyone. That’s the only surefire way to stay safe, and it’s the only way to make your intentions regarding your device clear. Just in case this is not upheld, if you want to plead the Fifth, make sure you’re using a passcode that’s at least 10 characters long. We don’t know if this newfound interpretation of our rights will last, but a password will always be a protected right.

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