Criminal Law

Crim. Law Journal Spring/Summer 2020, Vol. 20, Issue 2


By Bora Ndregjoni*


Think about every single digital file currently stored on your smartphone. Pictures of your family or beloved pet, reminders to pick up your dry cleaning and attend your work meeting this Friday, your bank statements and digital debit cards, and the thousands of personal messages or e-mails sent to your boss, colleagues, friends, and loved ones. Now imagine a police officer approaches you, questions you, and then commands you to use your biometric features, such as your fingerprint or face identification, to unlock your cellphone. What do you do? Can you plead your Fifth Amendment right to remain silent and refuse to comply with the officer’s order? The answer to these questions depends on the state in which your currently reside. Sadly, compelling biometric features—perhaps directly in contrast to Fifth Amendment protections—is common practice in certain states.

Alarmingly, existing case law hardly addresses this issue: whether the compulsion of a biometric feature, such as a fingerprint or facial recognition identification used to unlock a cellphone, falls within Fifth Amendment protection.1 Recently, in a landmark case, the United States District Court for the Northern District of California ruled that police officers cannot compel individuals to use biometric features to unlock their cellphones, as doing so would violate the Fifth Amendment.2 This ruling not only more adequately protects individual privacy interests, but it also safeguards one’s Fifth Amendment rights even in an era where technology is outpacing the law.3 The Supreme Court of the United States has yet to hear this issue, and it remains a question of first impression in the vast majority of lower courts.

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