I came across an item today that stunned me. The Wall Street Journal and Findlaw reported on a case from late last year where a Virginia State judge ruled that an arrestee may have to offer up his fingerprint to unlock his phone – the Fifth Amendment does not apply.
Now before everyone goes crazy on me, this is a Virginia state judge and this has not been appealed as far as I know, so it has no implications outside the Commonwealth of Virginia.
As Marcia Hoffman, the well known privacy attorney, formerly with the EFF and now in private practice in San Francisco said in wired, the Fifth Amendment protects testimony. Fortunately or unfortunately, the founding fathers did not understand about the Internet or DNA or a lot of modern things. Marcia explained that evidence is only testimonial when it reveals the contents of your mind. Courts have said for a long time that defendants have to give DNA samples, voice samples, fingerprints, etc. even though any of those might be used to convict someone.
The Supremes, those wonderful old folks in black robes, decided in the 1980s that there is a difference between being forced to give up the key to a safe vs. revealing the combination to a safe. Strange, but true. I do believe that the courts have also ruled that if you won’t give up the combination to the safe, they can call a locksmith. If the safe is locksmith proof, you are golden, otherwise, not so much so.
That doesn’t mean that the cops don’t need a search warrant, but in this case, I am sure that the judge in Virginia would be more than willing to sign one.
Other judges, like one in Colorado, have said that passwords are not protected by the Fifth Amendment either. In that case, the order was not appealed because the defendant’s ex-husband provided the cops with a list of possible passwords, one of which apparently workd.
So this is a dicey business – encrypt or decrypt at your own peril.
It is only a matter of time before one of these cases gets appealed and we will have a somewhat more consistent interpretation of the Constitution. For the moment, you just have to toss a coin for your answer.
Of course, with the Apple fingerprint sensor, they should be able to take the fingerprints that they collected when they booked the guy and use them to unlock the phone. 🙂