Unlocking Fifth Amendment Protection: How California Law Prevents Compelled Biometric Features

• Publication year: 2020
• Author: By Bora Ndregjoni

UNLOCKING FIFTH AMENDMENT PROTECTION: HOW CALIFORNIA LAW PREVENTS COMPELLED BIOMETRIC FEATURES

By Bora Ndregjoni^*

INTRODUCTION

Think about every single digital file currently stored on your smartphone. Pictures of your family or beloved pet, reminders to pick up your dry cleaning and attend your work meeting this Friday, your bank statements and digital debit cards, and the thousands of personal messages or e-mails sent to your boss, colleagues, friends, and loved ones. Now imagine a police officer approaches you, questions you, and then commands you to use your biometric features, such as your fingerprint or face identification, to unlock your cellphone. What do you do? Can you plead your Fifth Amendment right to remain silent and refuse to comply with the officer's order? The answer to these questions depends on the state in which your currently reside. Sadly, compelling biometric features—perhaps directly in contrast to Fifth Amendment protections—is common practice in certain states.

Alarmingly, existing case law hardly addresses this issue: whether the compulsion of a biometric feature, such as a fingerprint or facial recognition identification used to unlock a cellphone, falls within Fifth Amendment protection.¹ Recently, in a landmark case, the United States District Court for the Northern District of California ruled that police officers cannot compel individuals to use biometric features to unlock their cellphones, as doing so would violate the Fifth Amendment.² This ruling not only more adequately protects individual privacy interests, but it also safeguards one's Fifth Amendment rights even in an era where technology is outpacing the law.³ The Supreme Court of the United States has yet to hear this issue, and it remains a question of first impression in the vast majority of lower courts.

This paper proposes that the approach adopted by the United States District Court of the Northern District of California is correct, and that the Supreme Court of the United States, along with all lower courts, should adopt such an approach as well. Part I of this Paper explains the history of the Fifth Amendment and the protections it affords to individuals. Part II of this Paper explains the emergence of biometric data and how courts have considered such data in relation to Fifth Amendment protection. Finally, Part III of this Paper breaks down the approach taken by the Northern District of California and illustrates why that it is the superior approach.

I. BACKGROUND OF FIFTH AMENDMENT PROTECTION

The Fifth Amendment guarantees "[n]o person . . . shall be compelled in any criminal case to be a witness against himself."⁴ The Framers of the United States Constitution added the Fifth Amendment privilege against self-incrimination because they found that unhampered law enforcement would sacrifice the "social objects of a free society."⁵ In deliberating the content of the Fifth Amendment, the Framers found that "it were better for an occasional crime to go unpunished than that the prosecution should be free to build up a criminal case, in whole or in part, with the assistance of enforced disclosures by the accused."⁶ The Fifth Amendment should be construed liberally, as its history affords protections to both the innocent and guilty.⁷

The Supreme Court of the United States enacted a three-prong test that determines whether an individual qualifies for Fifth Amendment protection.⁸ To qualify for the Fifth Amendment privilege, an individual's communication must be: (1) compelled; (2) testimonial; and (3) incriminating.⁹ The crux of whether or not unlocking a cellphone with biometric features is protected lies on the testimonial element of the Fifth Amendment inquiry. Communication is testimonial when an individual is compelled to reveal, explicitly or implicitly, the contents of her own mind.¹⁰ Testimonial communication is not restricted to oral or written communications; it can also apply to nonverbal conduct.¹¹ In fact, in United States v. Hubbell, the Supreme Court held that the nonverbal act of producing subpoenaed documents was testimonial in nature because it communicated information about the documents' existence, custody, and authenticity.¹²

Justice Stevens, in reference to the testimonial element of Fifth Amendment protection, stated that an individual cannot be compelled to use her mind to aid the prosecution in a conviction.¹³ Specifically, he stated that an individual may "be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe—by word or by deed."¹⁴ Justice Stevens thus reiterates that the Fifth Amendment protects the contents of an individual's mind. Under this rationale, "the government can compel you to turn over the key to your safe, but it cannot force you to reveal the combination because only one of those is the contents of your mind."¹⁵ Such a viewpoint is the catalyst of the debate on whether or not using biometric features to unlock a cellphone is testimonial.

[Page 2]

II. BIOMETRIC FEATURES AND HOW THEY RELATE TO THE FIFTH AMENDMENT

Dating back to the 1960s, the Supreme Court found that the compelled collection of biometric data does not violate an individual's Fifth Amendment privilege because an individual was not forced to disclose the contents of her mind.¹⁶ For example, "compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture," falls outside of the protection.¹⁷ The Supreme Court made an important distinction in finding that these biometric features are not testimonial in nature—there is a difference between "something you have versus something you know."¹⁸ An individual who is compelled to become the source of "real or physical" evidence differs from an individual who is compelled to reveal the contents of her mind.¹⁹ Thus, the Court's reasoning, which remains in place today, is that when an individual is compelled to provide physical characteristics for identification purposes, such biometric data is not testimonial.²⁰

Presumably, when the Supreme Court was deciding these cases, it did not envision a world in which cellphones, such as iPhones, would require the use of one's biometric features. When smartphones first originated, consumers had the option to protect their device with an alphanumeric password. Smartphones users still have the ability to use such passwords today. Lower courts have held that the Fifth Amendment prohibits officers from compelling an individual to either speak or write one's password to her phone.²¹ Lower courts reason that compelling a password is testimonial because it requires an individual to disclose information based on the contents of the mind.²²

With the progression of technology, individuals can now use biometric features, such as fingerprints, for much more than identification purposes—such features now often take the place of passwords. This progression, however, now implicates constitutional protections. Few courts have ruled on this matter, but those that have found that compelled biometric features, in this context, are not testimonial rely on the aforementioned Supreme Court precedent.²³ Specifically, the Circuit Court of Virginia found that a compelled fingerprint used to unlock a cellphone falls outside of Fifth Amendment protection because it is a physical characteristic, similar to providing a fingerprint or blood sample for identification purposes.²⁴ There, the court likened the compelled fingerprint to the key to a safe, rather than the memorized combination.²⁵ It reasoned that a fingerprint used in this manner does not require the defendant to communicate any knowledge and thus, it was not a testimonial communication.²⁶

There are two main problems with these lower courts' reasoning. First, the courts are relying on cases that were decided almost half a century ago. During this time, the Supreme Court could not have anticipated the vast technological advancements that have emerged over time. Technology is now quickly outpacing the law; however, rapid advancements in technology do not diminish the protections enumerated in the Constitution.²⁷ In fact, the Supreme Court, in recognition of this point, has recently instructed courts to adapt to these advancements and adopt rules that "take account of more sophisticated systems that are already in use or development."²⁸ Recently, the Supreme Court decided to expand Fourth Amendment protection as it relates to cellphones in the wake of such technological advancements.²⁹ In Riley v. California, the Court noted that cellphones are now such "a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy."³⁰ As a result of the private nature of a cell phone, the...