Simone Lawson
Facial recognition technology and fingerprint ID are increasingly being used to unlock phones and other devices. But are these forms of ID protected by the constitution? Several courts have ruled that the Fifth Amendment does not provide protection against the production of physical features or acts. This is because physical attributes, such as your face or fingerprint, are not testimonial in nature. However, the Fifth Amendment remains a very unsettled area according to some legal experts.
| Characteristics | Values |
|---|---|
| Are fingerprints protected by the constitution? | No |
| Are facial IDs protected by the constitution? | No |
| Why? | Physical attributes are not testimonial in nature |
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What You'll Learn
- The Fifth Amendment does not protect against the production of physical features or acts
- The Fifth Amendment does protect against requiring a defendant to give testimonial evidence
- Fingerprints are not testimonial and can be compelled
- Thoughts are protected, biometric identifiers are not
- The Fifth Amendment is a very unsettled area
The Fifth Amendment does not protect against the production of physical features or acts
When a person is arrested, they must consent to being fingerprinted while retaining the right to remain silent. This is because thoughts are protected, but biometric identifiers (fingerprints, face, hair) are not.
Courts have ruled that the act of producing evidence, such as providing a passcode, is protected under the Fifth Amendment. This is because a passcode is not known "outside of the defendant's mind", and requires the defendant to communicate knowledge. However, a fingerprint can be compelled in the same way that police can force a defendant to provide a blood or DNA sample with a valid warrant.
The Fifth Amendment remains a "very unsettled area", according to some legal experts. Some argue that using a fingerprint to unlock a phone is testimonial under the Fifth Amendment because a person is "transforming the information" and doing it "with a translation that's his own".
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The Fifth Amendment does protect against requiring a defendant to give testimonial evidence
The Fifth Amendment protects against requiring a defendant to give testimonial evidence. However, it does not protect against the production of physical features or acts, such as fingerprints or facial recognition. This is because physical attributes are not considered testimonial in nature. For example, a person can be compelled to provide a fingerprint to unlock a phone, as this is not considered testimonial evidence.
The Fifth Amendment also does not protect against requiring a defendant to give documentary evidence, such as producing documents or voice samples. This is because the importance of a voice sample is its physical characteristics rather than its content.
However, the act of producing evidence, such as providing a passcode, is protected under the Fifth Amendment. This is because conceding the existence and authenticity of such evidence tends to incriminate the defendant. Forcing a defendant to reveal a passcode requires the defendant to communicate knowledge, which is different from providing a fingerprint or other physical evidence.
The Fifth Amendment remains a "very unsettled area", according to some legal experts. There are arguments that using a fingerprint to unlock a phone is testimonial under the Fifth Amendment because a person is "transforming the information" and doing it "with a translation that's his own".
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Fingerprints are not testimonial and can be compelled
The Fifth Amendment protects against requiring a defendant to give evidence that is "testimonial", but not evidence that is documentary. Evidence is testimonial if conceding its existence and authenticity tends to incriminate. Forcing a defendant to reveal a passcode requires the defendant to communicate knowledge, unlike the production of documents, fingerprints or even voice samples (since the importance of a voice sample is its physical characteristics rather than its content). The password is not known "outside of the defendant's mind".
A fingerprint, on the other hand, is not testimonial and can be compelled, similarly to the way police can force a defendant to provide a blood or other DNA samples pursuant to a valid warrant. This is because physical attributes, such as your face or fingerprint, are not testimonial in nature.
Courts have ruled that the act of producing evidence – or in a scenario providing law enforcement with your passcode – is protected under the Fifth Amendment. However, several courts have ruled that the Fifth Amendment does not provide protection against the production of physical features or acts.
According to Brett Max Kaufman, a staff attorney at the ACLU's Center for Democracy, the Fifth Amendment remains "a very unsettled area". Kaufman has argued that using a fingerprint to unlock a phone is testimonial under the Fifth Amendment because a person is "transforming the information" and doing it "with a translation that's his own".
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Thoughts are protected, biometric identifiers are not
Courts have ruled that the Fifth Amendment does not provide protection against the production of physical features or acts. This is because physical attributes, such as your face or fingerprint, are not testimonial in nature. The government can compel a person to produce their fingerprint to unlock a phone because it's not testimonial. However, the Fifth Amendment remains 'a very unsettled area' according to Brett Max Kaufman, a staff attorney at the ACLU's Center for Democracy. Kaufman has argued that using a fingerprint to unlock a phone is testimonial under the Fifth Amendment because a person is 'transforming the information' and doing it 'with a translation that's his own'.
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The Fifth Amendment is a very unsettled area
The Fifth Amendment protects against requiring a defendant to give evidence that is testimonial, but not evidence that is documentary. Evidence is testimonial if conceding its existence and authenticity tends to incriminate. Forcing a defendant to reveal a passcode requires the defendant to communicate knowledge, unlike the production of fingerprints or voice samples, which are physical characteristics rather than content.
According to Brett Max Kaufman, a staff attorney at the ACLU's Center for Democracy, the Fifth Amendment remains a very unsettled area. Kaufman argues that using a fingerprint to unlock a phone is testimonial under the Fifth Amendment because a person is transforming the information with their own translation. Another attorney, Andrew Crocker of the Electronic Frontier Foundation, has called the use of fingerprints to unlock phones a clever end-run by law enforcement around constitutional rights.
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Frequently asked questions
No, thoughts are protected, but biometric identifiers (fingerprints, face, hair) are not.
The Fifth Amendment does not provide protection against the production of physical features or acts. This is because physical attributes, such as your face or fingerprint, are not testimonial in nature.
When a person gets arrested, they must consent to being fingerprinted while retaining the right to remain silent. Courts have also ruled that the act of providing law enforcement with your passcode is protected under the Fifth Amendment, but your fingerprint is not.
