Apple’s Fingerprint ID May Mean You Can’t ‘Take the Fifth’

Big Don

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Sep 2, 2007
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[h=1]Apple’s Fingerprint ID May Mean You Can’t ‘Take the Fifth’[/h]
  • By Marcia Hofmann
  • 09.12.13
  • 9:29 AM
  • Wired EXCERPT:
    There’s a lot of talk around biometric authentication since Apple introduced its newest iPhone, which will let users unlock their device with a fingerprint. Given Apple’s industry-leading position, it’s probably not a far stretch to expect this kind of authentication to take off. Some even argue that Apple’s move is a death knell for authenticators based on what a user knows (like passwords and PIN numbers). While there’s a great deal of discussion around the pros and cons of fingerprint authentication — from the hackability of the technique to the reliability of readers — no one’s focusing on the legal effects of moving from PINs to fingerprints.
    Because the constitutional protection of the Fifth Amendment, which guarantees that “no person shall be compelled in any criminal case to be a witness against himself,” may not apply when it comes to biometric-based fingerprints (things that reflect who we are) as opposed to memory-based passwords and PINs (things we need to know and remember).
    The privilege against self-incrimination is an important check on the government’s ability to collect evidence directly from a witness. The Supreme Court has made it clear that the Fifth Amendment broadly applies not only during a criminal prosecution, but also to any other proceeding “civil or criminal, formal or informal,” where answers might tend to incriminate us. It’s a constitutional guarantee deeply rooted in English law dating back to the 1600s, when it was used to protect people from being tortured by inquisitors to force them to divulge information that could be used against them.
    End Excerpt
    Interesting article. It occurred to me that the fingerprint scanner could be a real boon to law enforcement, since the NSA is collecting so called "Meta data" a fingerprint of a fugitive, and don't think criminals don't like the latest phones too, pops up, an email is sent to the closest police department, and viola! A SWAT team descends, guns blazing on the reclusive felon...
    But, there could easily be BAD uses too...
    Think how easy it would be to round up political rivals...


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Dec 8, 2007
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Seems like the tablets already work with facial recognition....hmmmm


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Jul 2, 2006
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The Fifth Amendment only protects testimonial evidence; stuff that you say. It doesn't apply to non-testimonial evidence. You have no Fifth Amendment right to your fingerprints; a search warrant may be required in some circumstances, depending on how intrusive the method of obtaining the evidence is. An early DNA case involved a cigarette butt that had been discarded. There was no privacy right when a cop collected it, and used it to obtain the suspect's DNA to compare with the sample.

My suspicion is that the case law as it develops will hold that law enforcement can't seize your phone for the purpose of obtaining your fingerprint absent a search warrant or an exception to the search warrant requirement, anymore than a cop can walk up to you and grab your wallet. Other repositories of that biometric data will probably be protected in different ways and to different degrees. I just need a "valid law enforcement justification" to run your driver's license and get your physical description; that's pretty broad authority. But, for example, to get at medical records about an employee, I need a judge to sign off on a subpoena. Of course, a private company like Google can also have it's own privacy policies. I've never had to pull up someone's Google Drive files. I assume I'd simply need a subpoena or possibly a search warrant.