Now there is a case when a person has been ordered to unlock an iPhone with her fingerprint in a court. But does this go well with the Constitution?
Paytsar Bkhchadzhyan, the girlfriend of an Armenian gang member, has been arrested for an alleged identification theft and then ordered in court to unlock her iPhone with her fingerprints (the device has Touch ID technology). However, some law experts raised the question, whether this action is in accordance with the law.
The Fifth Amendment allows everyone not to give self-incriminating information. Can it be used in this case? Unlocking the device gives the authorities access to, potentially, self-incriminating personal information. This is the debate going on in Los Angeles courtroom.
Fingerprint is Completely Different Matter
Right now, the U.S. Supreme Court has given the authorities a right to obtain a search warrant for mobile phones. Physical evidence can be forcefully collected from people in custody as well (including fingerprints). But to make someone unlock the device with a fingerprint is a completely different matter. According to Susan Brenner, a law professor at the University of Dayton, unlocking an iPhone with your fingerprint show that you have control over it, authenticates the data and makes you associated with it. “It’s the same as if she went home and pulled out paper documents—she’s produced it,” she told the Los Angeles Times.
Not all experts have this opinion. For example, Albert Gidari, the director of privacy at Stanford Law School’s Center for Internet and Society, stated that Touch ID might be a loophole, allowing to avoid the Fifth Amendment. That is because you are not forced to verbalize information you have in your mind. “Put your finger here is not testimonial or self-incriminating”, said the expert.
And this is important because one can’t be compelled to give a passcode, as it is protected by the Fifth Amendment. But a physical evidence can be taken without a search warrant. So can unlocking a device with a fingerprint be classified as such?