This week, the country eagerly awaits the new iPhone 5S. We’ve obviously been through this cycle before, waiting for a new phone that will be more expensive and only slightly different than the previous version. The public jumps on the chance to be in the first wave of persons with the cool, new, most technologically up-to-date phone! But this time may be a little different. This time, there may be legal implications that the greater public likely hasn’t thought through.
An editorial discusses how the new phone, with its high-tech fingerprint authentication system, may force a person’s locked cellphone outside of the protection of the Fifth Amendment. The Fifth Amendment protects the right to not give self-incriminating testimony. The Supreme Court has discussed that “testimony” constitutes our thoughts and information stored in our minds. Pin numbers and passwords would be included in this. Because we store our passwords and pin numbers in our minds, the government cannot require us to provide them in order to unlock our cellphones which may hold incriminating evidence.
But, keys and other tangible property are not considered testimony because they are not contained within our thoughts. To illustrate, the author of the article uses the example that the police could confiscate the key to a lockbox that contains incriminating evidence but could not force anyone to give the combination to a safe that contains the same incriminating evidence. In the case of the iPhone, while our passwords and pin numbers would be protected so long as they are stored in our minds, our fingerprints are tangible and possibly would not be considered as “testimony” for protection under the Fifth Amendment. It is possible that we could be forced to give up our fingerprints for access into our iPhone 5s should the government ever have probable cause to search them.
So, while you may be excited about this new technology, be careful of the implications. And, be careful of what you store in your phone – possibly a good lesson anyway. As a society, this may be one advance in technology we may not want to support. Food for thought.
There are many other issues that could play into this including Fourth Amendment protections and whether courts would hold as this attorney blogger believes, but it is an interesting issue and something to be aware of if you plan to have the iPhone 5s and use the fingerprint authentication.