Judge Rules That Feds Can’t Make You Unlock Your Phone With Your Face
01.14.2019

In a win for privacy-minded tech folk, a judge last week ruled that federal authorities can’t make you unlock your smartphone using your biometric features. In the past, U.S. judges had ruled that the government could force a suspect to unlock their phone with their face or their finger—despite the fact that the authorities aren’t allowed to make a suspect cough up their alphanumeric passcode. The January 10 decision, by Northern California magistrate judge Kandis Westmore, was first reported by Forbes.

The ruling came in the case of two unspecified suspects allegedly extorting a man by threatening to publicly release an embarrassing video of him. The feds, in requesting a search warrant for an Oakland, Calif., residence, sought to compel anybody on the premises at the time of their visit to unlock their phones using facial or iris recognition, or a fingerprint. Westmore turned down the government’s request for a search warrant, deeming the ask “overbroad” because it was “neither limited to a particular person nor a particular device.”

More significant were the Fifth Amendment aspects of the ruling. As a passcode is given up verbally, it’s considered testimony, and thus protected by the Fifth Amendment right against self-incrimination. That hasn’t been the case for biometric features, until now. “If a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device,” Westmore wrote. She ruled that when used to unlock phones, face scans and fingerprints are not “physical evidence.”

“The challenge facing the courts is that technology is outpacing the law,” Westmore wrote. “In recognition of this reality, the United States Supreme Court recently instructed courts to adopt rules that ‘take account of more sophisticated systems that are already in use or in development.'”

Greg Nojeim, director of the Center for Democracy and Technology’s Project on Freedom, Security & Technology, tells BREAKER that the “decision is important because it relies on recent Supreme Court determinations that ‘digital is different‘ when it comes to the application of constitutional rights to new technologies.”