We all know that smartphones and similar devices contain enormous quantities of personal and private information. Not surprisingly, for that reason, the government considers them a treasure trove of potential evidence in criminal investigations. Most courts have now concluded that forcing an individual to provide the password for a smartphone to a law enforcement agent runs afoul of the Fifth Amendment’s privilege against self-incrimination. A split in the federal courts has begun to emerge recently, however, as to whether compelling an individual to provide a fingerprint or other biometric data to unlock a smartphone amounts to a similar constitutional violation. This article will discuss two recent representative cases reflecting the divergent views on this issue.

Passwords and Biometric Identifiers

When smartphones first appeared back in 2007, the most pressing issue for law enforcement was how to quickly gain access to them, especially under exigent circumstances. In those early days, devices only had a password or passcode which typically only could be obtained from the owner of the phone. Assuming the owner refused to unlock the device, law enforcement would seek to compel the owner to do so by means of subpoena or court order, triggering a Fifth Amendment objection. The outcome basically turned on whether requiring an individual to provide a password could be considered a “testimonial” communication worthy of constitutional protection.