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Should Fingerprints Be Protected Under the Fifth Amendment?

May 2, 2016

We all watched the Federal Bureau of Investigations face off with Apple over the San Bernardino iPhone recently. At the same time as that was going on, it turns out, the FBI was waging a different kind of encryption battle in a Los Angeles courtroom, according to Los Angeles Times. For the first time in a federal case, the FBI was able to get a search warrant compelling a suspect to unlock her iPhone using her fingerprint.

Should that sort of compulsion be prohibited under a person’s Fifth Amendment right to be free of self-incrimination? The jury’s still out on that one, with some legal experts holding that fingerprints are just like any other form of physical, tangible evidence while others say the bar should be higher for biometric data because of the vast amount of personal information it can unlock.


[T]he act of compelling a person in custody to press her finger against a phone breached the 5th Amendment’s protection against self-incrimination. It forced Bkchadzhyan to testify — without uttering a word — because by moving her finger and unlocking the phone, she authenticated its contents.

- Susan Brenner

The United States Supreme Court has long held that physical evidence such as fingerprints can be compelled without a judge’s permission. Passcodes, on the other hand, are considered to be communications or knowledge, which cannot be compelled without violating the Fifth Amendment. Susan Brenner, a law professor at the University of Dayton, doesn’t agree that should be any difference between compelling a passcode and a fingerprint when the print is being used to unlock a smartphone.

George M. Dery III, a criminal justice professor at California State University and a practicing attorney, takes a different view. In Dery’s opinion, the warrant is much like the government’s request for a key, noting that search warrants often authorize law enforcement officials to waltz right into a home and seize evidence.

So, we’re back to the question: should courts be allowed to compel suspects to use their fingerprints to unlock their smart devices? Truthfully, it doesn’t seem to be much different than law enforcement officials finding incriminating evidence after compelling a suspect to hand over the key to their home or office. If the proper procedures are followed in obtaining the search warrant and then gathering the evidence, it makes sense for it to be legal to force someone to unlock their device using a fingerprint.