Your Face Is Your Password… and Potentially Subject to Search

Your Face Is Your Password...and Potentially Subject to Search.

FranciscoFdez / Pixabay

On September 12, 2017, Apple presented its new products, including the iPhone X.[1] The newest iPhone model features Face ID—technology allowing an owner to unlock the phone by looking at it.[2] Back in 2013, when presenting the iPhone 5S, Apple introduced another biometric recognition feature—Touch ID, allowing a user to unlock her iPhone with a fingerprint.[3] According to Apple, Face ID is in some respects safer than Touch ID; the chances of someone being able to unlock someone else’s phone with Touch ID is 1 in 50,000, while with Face ID it’s 1 in 1 million.[4] Nevertheless, Touch ID has presented a security issue that may also arise with Face ID: police commanding a person to unlock her phone using her biometric data. While federal appellate courts and the U.S. Supreme Court have not confronted this issue directly,[5] other courts have.[6]

Back in 2014, Virginia judge Steven Frucci ruled that police can force suspects in a criminal investigation to unlock their cell phones with a fingerprint scanner to allow officers to open and search them.[7] Having a fingerprint taken to unlock the phone, he said, is comparable to providing a key or a DNA sample, which is permitted by law.[8] However, officers may not make suspects give up their phone passcodes, with or without a warrant,[9] because that would run afoul of Fifth Amendment protections.[10] This view has been reaffirmed in 2016 and 2017. In 2016, the United States District Court for the Central District of California issued a warrant making a South California woman provide her fingerprint on an iPhone.[11] In 2017, the Minnesota Court of Appeals upheld a district court’s order compelling a criminal defendant to unlock his phone.[12] According to the court, “the task that [defendant] was compelled to perform—to provide his fingerprint—[was] no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing.”[13] Because the order compelling the defendant to produce his fingerprint to unlock the cell phone did not require a testimonial communication, the court held that the order did not violate the defendant’s Fifth Amendment privilege against compelled self-incrimination.[14]

Now, the question is whether compelling a person to look at her phone is going to be treated differently from compelling a person to place her thumb on her phone. If the answer is no, then a warrant could compel a person to look at her phone and unlock it, thus disclosing potentially incriminating information. ACLU staff attorney Brett Kaufmann, for example, thinks that because some courts have already ruled that people can be ordered by a court to unlock their phones with their thumbprints, courts might also order people to unlock their smart phones by looking at them.[15] Arguably, the legal analysis of Face ID will largely be the same as the analysis of Touch ID.[16] Thus, we may see “face pointed toward phone” in search-and-seizure warrants.[17]

[1] Apple, Apple Events – Keynote September 2017.

[2] Apple, iPhone X.

[3] Seth Rosenblatt, iPhone 5S Comes with Touch ID Fingerprint Scanner, CNet, Sept. 10, 2013.

[4] Chris Ciaccia, Will Apple’s New Face ID Security Feature Help Cops Unlock Your iPhone?, Fox News, Sept. 13, 2017.

[5] Andrew Couts, Can Police Unlock Your Phone X Using Face ID?, Daily Dot, Sept. 13, 2017; Susan Seager, Face ID and the Fifth Amendment: Can Cops Make You Open the New iPhone?, The Wrap, Sept. 16, 2017.

[6] See notes 7-13 infra.

[7] Virginia Judge Rules Police Can Require Suspect to Unlock Cell Phone with Fingerprint, Jurist, Nov. 1, 2014.

[8] Id.

[9] Seager, Face ID and the Fifth Amendment.

[10] See note 7 supra.

[11] Cyrus Farivar, Woman Ordered to Provide Her Fingerprint to Unlock Seized iPhone, Ars Technica, May 2, 2016.

[12] Cyrus Farivar, Court Rules Against a Man Who Was Forced to Fingerprint-Unlock His Phone, Ars Technica, Jan. 18, 2017.

[13] State v. Diamond, ___ N.W.2d ___ (Minn. Ct. App. 2017) (No. A15-2075; 1-17-17).

[14] Id.

[15] Seager, Face ID and the Fifth Amendment.

[16] Couts, Can Police Unlock Your Phone X Using Face ID?.

[17] See Search and Seizure Warrant, Case 2:16-mj-00398-DUTY (C.D.Cal.2016) (2-25-16) (describing property taken as “fingerprint on iPhone device”).