The Courts and Passcode vs. Biometric Access to Your Smartphone: It’s Complicated

(With a special message at the end for facial recognition and cybersecurity marketing leaders)

Years ago, when I was in Mexico City on a business trip, one of my coworkers stated that he never uses biometrics to protect the data on his smartphone.

His rationale?

Government officials can compel you to use your biometrics to unlock your smartphone. They can’t compel you to provide your passcode to government officials.

Ironically, we both worked for a biometric company at the time.

But my former coworker isn’t the only one making this statement. With the recent protests, and with the recent searches of people crossing the U.S. border by plane or otherwise, this same advice is echoed everywhere.

But is it true?

As ZDNET says, it’s complicated.

Passcodes: it’s complicated

ZDNET quotes law firm managing partner Ignacio Alvarez on passcodes:

“But the majority of the courts have found that being required by law enforcement to give your code to your devices violates your Fifth Amendment right against self-incrimination.”

Note what Alvarez said: the MAJORITY of the courts. So if you end up before the “wrong” court, you might have to provide your passcode anyway.

ZDNET also quotes attorney Joseph Rosenbaum:

“Passwords or passcodes, because they represent information contained in a person’s mind, seem to generally be considered the same as requiring someone to testify against themselves in court or in a deposition,” he told ZDNET. “That information is more likely to be legally protected under the Fifth Amendment as potentially self-incriminating.”

Notice his “seem to generally be” and “more likely to be” language. Again, you could still be compelled to give your passcode.

But that’s the easy part.

Biometrics: it’s complicated

But passcodes are the easy part. Biometrics are much more of a gray area.

The rationale behind not giving up your biometric is similar to the rationale behind the Miranda warning. As Dragnet fans know, “Anything you say can and will be used against you in a court of law.” Regarding passcodes, the courts…well, some of the courts, hold that since a passcode can be “spoken,” it’s covered under Miranda and therefore can’t be given without violating your Fifth Amendment rights.

What about biometrics? (Excluding voice biometrics for the moment.)

“…since a biometric isn’t spoken, production of that biometric may not legally qualify as the act of testifying against yourself and therefore, you can be compelled to unlock a phone or an app without necessarily having your rights violated.”

Again, note the use of the words “may not.” It isn’t clear here either.

And even these wishy-washy definitions may change.

“This area of law is a seriously moving target. Over time, things could favor passcodes being non-testimonial or biometrics being testimonial.”

In other words, a few years from now lawyers may advise you to use biometrics rather than passcodes to protect your private data on your smartphone.

Or maybe they’ll say both methods protect you equally.

Or maybe they’ll say neither method protects you, and your private data is no longer private.

But most likely they’ll say “It depends.” In the same way that our 18,000 law enforcement agencies have 18,000 different definitions of forensic science, they could have 18,000 different definitions of Miranda rights.

And one more thing…

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