Court Holds That 5th Amendment Self-Incrimination Privilege Precludes Compelling Fingerprint or Facial Recognition Access to Digital Devices
January 23, 2019
On January 10, 2019, a Magistrate Judge in the Northern District of California issued an order denying an application for a search warrant that would have compelled any individual present at the premises to be searched to unlock their digital devices using biometric features, such as thumb prints and facial scans.
The order is notable in that the search warrant was not rejected on Fourth Amendment grounds, but rather on the grounds that requiring a person to unlock his or her digital device ran afoul of the Fifth Amendment’s privilege against self-incrimination. Providing a thumb or facial scan, the court reasoned, constituted testimony protected by the Fifth Amendment, analogizing biometrics to passwords that similarly protect information stored on devices. This decision highlights the current tension in the courts on the accessibility of information stored on digital devices, and the courts’ continuing efforts to develop rules governing this rapidly-evolving area of law.
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