That includes two 2019 cases in California and Idaho, where the police wanted to force open phones inside properties relevant to the investigations. There has been some pushback over such biometric unlocks from judges in some states. “We're trying to apply centuries-old constitutional law that no one could have envisioned would have been an issue when the laws were written,” he says. similar to fingerprints or DNA,” Greco says.īut he believes there will soon be enough diverging case law for the Supreme Court to have to decide whether or not compelled facial recognition unlocks are lawful. “Most courts are going to find they can force you to use your face to unlock your phone because it's not compelling you to speak or incriminate yourself. But body parts are, by their nature, not as private as a person’s thoughts, Greco notes. Passcodes, unlike biometric information, are legally considered “testimonial,” and citizens are not obliged to provide such testimony because the Fifth Amendment protects you from self-incrimination.
Jerome Greco, a public defender in the Digital Forensics Unit of the Legal Aid Society in New York City, says this is because American law hasn’t caught up with the technology. That’s despite the obvious fact that the result is the same. have not allowed investigators to compel people to hand over a passcode for phones or apps, but they have allowed them to repeatedly unlock phones using biometrics. That’s because of an illogical quirk in U.S. The FBI, Google and Comcast did not immediately respond to a request for comment.įorcing people to unlock encrypted messaging with their biometrics is unprecedented - and controversial. His lawyer did not respond to a request for comment at the time of publication.Īmazon’s Wickr hadn’t provided comment at time of publication. “Most courts are going to find they can force you to use your face to unlock your phone because it's not compelling you to speak or incriminate yourself.”Īfter the FBI successfully forced Terry to use his face to unlock his Wickr account, Terry was charged in a criminal complaint with distribution and possession of CSAM, but has not yet offered a plea.
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