FACE OFF: OVERCOMING THE FIFTH AMENDMENT CONFLICT BETWEEN CYBERSECURITY AND SELF-INCRIMINATION.

• Author: Jacobson, Zachary E.

TABLE OF CONTENTS I. INTRODUCTION 187 II. ORIGINS AND DEVELOPMENT OF THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION 188 A. Encryption, Biometrics, and Their Place in the Law 190 III. COMPARISON OF FEDERAL DISTRICT COURT CASES 192 A. The Direction of the Constitution and Privilege Against Self-Incrimination 195 IV. A CYBERSECURITY VIEW OF BIOMETRIC ENCRYPTION AND AUTHENTICATION A. The Foregone Conclusion Doctrine and Fifth Amendment 197 V. CONCLUSION 202 I. INTRODUCTION

The average lifespan of a smartphone is 2.75 years. (1) As time progresses, more of the 290 million smartphone users in the United States (2) will be pushed towards using more secure biometric encryption methods such as face ID and fingerprint ID, already found on many smart devices. (3) Cybercriminals might not struggle to overcome a simple 4-6 digit password on an individual's smartphone, but it is considerably more difficult for hackers to replicate an individual's fingerprint or the complexities of a person's face. (4) While an individual's phone is far more secure from cybercriminals thanks to biometric encryption, it runs the risk of being quite easily compromised should that person have an encounter with law enforcement. (5)

In a majority of jurisdictions, the Fifth Amendment protects an individual from being compelled to declare one's password to unlock his or her personal smart device. (6) On the other hand, no such universal protection is granted to individuals who refuse to present their fingerprint or face scan in order to open a biometrically encrypted device. (7) In this legal setting, a smart device with the 6-digit password of "1-1-1-1-1-1" is more constitutionally protected from government intrusion than the most recent biometric encryption found on most cutting edge smart devices.

Say for example you and your crazed conspiracy-loving Uncle Jeff go to buy the most popular model of smartphone in the United States, the iPhone 12 Pro. (8) You and Jeff each purchase an iPhone 12 Pro and begin setting up your respective devices. As you set up your device, you are prompted with an opportunity to set up facial recognition as well as a password. You select your password and begin scanning your face in order to biometrically encrypt your phone. Jeff sets up a password but refuses to set up a FaceID profile because of his fears of what the government or aliens might do with it. You both complete the setup of your phones but later, you are both implicated in an illegal gambling organization thanks to one of Jeff's conspiracy buddies. Law enforcement obtains valid warrants to search both, your and Jeff's, new iPhones in connection to the gambling. Law enforcement attempts to get Jeff to open his phone, but he refuses--law enforcement must leave Jeff's phone be because they cannot compel Jeff to say or type his password. However, if you were to refuse, it is likely that you could be found in contempt of court because you do not have a guaranteed Fifth Amendment privilege in your biometrically encrypted iPhone. (9)

The circumstances of this hypothetical scenario demonstrate a conflict between an individual's interest in securing their phone from cybercriminals against an individual's interest in the Fifth Amendment protection against self-incrimination. This note will begin to reconcile this conflict by observing it through the lens of cybersecurity, examining modern cases regarding the compulsion of biometric features in order to argue that such acts are testimonial and thus protected under the Fifth Amendment privilege against self-incrimination, and that the foregone conclusion doctrine should be limited in its application to biometric encryption cases. Part II of this note will provide meaningful background on an individual's right against self-incrimination under the Fifth Amendment and a brief history on encryption, authentication, and biometrics within the law. Part III of this note will examine two recent cases in which courts determined whether the compelled application of biometric features is a testimonial act. A comparison between the cases will indicate that courts should determine that the application of biometric features is testimonial in nature. Part IV will explore the application of the foregone conclusion doctrine, compare and contrast two different types of applications, and address how it should be applied within the context of the Fifth Amendment.

2. ORIGINS AND DEVELOPMENT OF THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION

   The origin of the privilege against self-incrimination predates the Constitution and can be found within English Common law. (10) After the American Revolution, James Madison spearheaded several proposed amendments during a speech to the House of Representatives. (11) The Grand Jury Clause, Double Jeopardy Clause, Self-Incrimination Clause, Due Process Clause, and the Takings Clause all made it into the final draft of the Constitution. (12) The final draft of Fifth Amendment states that no person "shall be compelled in any criminal case to be a witness against himself." (13)

   Since the states ratified the Constitution, the courts have been presented with complex legal issues regarding the Fifth Amendment that the Framers could have never anticipated. Boyd v. United States was the first Supreme Court case to take on the issue of self-incrimination in 1885. (14) In Boyd, the Supreme Court held that requiring a man to surrender his personal books and papers was unconstitutional under the Fifth Amendment. (15) The Supreme Court rationalized its holding by stating that it was wrong for the government to violate "the sanctity of a man's home and the privacies of life," and the violation of a private citizen's property necessitated protection under the Fifth Amendment privilege against self-incrimination. (16)

   In Blau v. United States, the Supreme Court established that the privilege against self-incrimination protected testimony that itself would support a conviction but also protected testimony that led to a "link in the chain of evidence needed" to support the conviction. (17) Blau's holding means that both the compelled responses that directly support conviction and any response that has an evidentiary link in the chain of evidence needed to support conviction receive protection. (18) The Supreme Court further established its rationale for the privilege against self-incrimination in Ullman v. United States. (19) The court noted that "too many...view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming privilege," and "the privilege against self-incrimination serves as a protection to the innocent as well as to the guilty, and we have been admonished that it should be given a liberal application." (20) While a liberal interpretation of the privilege against self-incrimination might hinder government efforts and allow some guilty people to escape, the privilege serves a greater purpose in protecting citizens from abuse by law enforcement. (21)

   The case that defined the privilege against self-incrimination as we know it today was Fisher v. United States. (22) The Fisher court held that a case must meet three requirements in order to implicate the privilege against self-incrimination. (23) An individual must (1) be compelled by the government, (2) to give a testimonial communication, (3) that is incriminating. (24) The litigation originated from an IRS summons that required attorneys to produce incriminating documents related to income tax accusations against their own clients and the attorneys asserted their privilege against self-incrimination. (25) At question was the testimonial nature of the production of documents. (26) The Fisher court specified that the Fifth Amendment protects against compulsion of testimony, and that testimony is not limited to verbal or written communications. (27) The court concluded that the act of handing over papers in response to a summons implicitly testified that the documents existed, they were in the Defendants' possession, and the papers surrendered were the specific documents the IRS was requesting, thus making them testimonial in nature. (28)

   Fisher also established what is known as the foregone conclusion doctrine. (29) The foregone conclusion doctrine states that when the testimonial aspect of compelled testimony "adds little or nothing to the sum total of the Government's information...no constitutional rights are touched." (30) The Fisher court determined that the existence of the incriminating documents was a foregone conclusion as the government was not relying exclusively on the "truthtelling" of the taxpayer to prove the existence of the documents. (31) The result here is that the evidence that is compelled goes from protected to unprotected because the government could show courts that the evidence provided at issue has already been established and would provide little or nothing to the case at hand. (32) Courts are quite ambiguous as to the burden of proof required to establish that a conclusion is foregone. (33)

   The foregone conclusion doctrine was expanded upon in United States v. Hubbell. (34) Hubbell was subpoenaed in relation to the Whitewater investigation, invoked the privilege against self-incrimination, and refused to state whether or not he had the documents that the Independent Council had requested. (35) Hubbell was granted immunity and supplied the documents but was indicted on tax and fraud charges. (36) The district court initially dismissed the charges because the evidence against Hubbell was derived from his immunized act, but the appellate court overturned the decision in order to determine whether the government had enough alternative proof or knowledge of the documents provided by Hubbell that his compelled production was a foregone conclusion. (37) The Supreme Court held even though the nature of the...