US Judge prizes password privacy over your own fingerprints

A Virginia Circuit Court judge has ruled that a criminal suspect can be compelled to give up a fingerprint to unlock a device but passwords and passcodes are protected by the Fifth Amendment.

Judge Steven C. Fucci recently ruled that suspected criminals don’t have to give up passwords or passcodes to unlock electronic devices such as smartphones but if the device is an iPhone, iPad or other device that uses biometric fingerprint scanning to unlock the device then the suspect can be compelled to unlock the device.

It’s a subtle distinction (some would call it splitting hairs) but the underlying rational is that the Fifth Amendment states that “no person shall be compelled in any criminal case to be a witness against himself,” or as it states in the Miranda code “you have the right to remain silent.” In other words you cannot be forced to testify against yourself or provide information (such as a password) that could be self-incriminating. Information is something you know, but a fingerprint (or DNA sample or retinal scan or handwriting sample or bite impressions or even your image) is part of who you are and those things are not protected under the Fifth Amendment.

It’s an interesting and subtle point but it’s not the first time a judge has ruled that a defendant can’t be compelled to provide the password to an encrypted device. The only difference here is that the judge ruled a defendant can be compelled to provide a fingerprint to unlock an encrypted device.

Fifth Amendment rights can be rather confusing and there are all sorts of loopholes and exceptions but as technology advances these and other constitutional rights are going to be tested in ways that no one could have anticipated.

I tend to agree with Judge Fucci on this one. A person should not be compelled to divulge information they have in their head if it may lead to possible conviction of a crime but, when it comes to things like DNA or fingerprints a person should not be allowed to withhold evidence even if it could result in criminal prosecution.

But, hey, I’m not a lawyer, I just play one on TV.