CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, February 24, 2020

Reitinger on Unlocking Devices and the Fifth Amendment

Nathan Reitinger (University of Maryland - Department of Computer Science) has posted Faces and Fingers: Authentication (Suffolk University Journal of High Technology Law, volume 20, Number 1, Pages 61-81 (2020)) on SSRN. Here is the abstract:
One of the most shocking outcomes of the pre-digital law versus post-digital world is the currently unconfirmed holding that although law enforcement may not compel the production of a password to unlock a mobile device, a finger, and likely a face, is fair game. You may be forced to “look” at your iPhone or “press” your finger against its fingerprint reader, but recitation of your password is off the table. Both logically and legally this result is quizzical. Merging these divergent outcomes, which both end in the same result—access—is the aim of this Essay, using as fodder a technical understanding of “authentication,” the organic statute behind device unlock. Because the sine qua non of authentication is identification and verification, unlocking a device necessarily imparts a truth telling: an expression of exclusivity, ownership, and control. These qualities are inherently testimonial; therefore, compelled device unlock based on a fingerprint or facial scan should be deemed to infringe upon the Fifth Amendment’s protection against self-incrimination.

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