Technology has evolved rapidly over the past few years. Most of us depend heavily on technology in our day-to-day lives. Technology is convenient and effective, and we especially rely on our cellphones. The advancement in technology seems like great news to most people, until you realize it could be used against you by police officers.
According to a recent article in Forbes, a person was forced to unlock his phone with his face (facial recognition software) in 2018. This occurred during an investigation in Columbus, Ohio, when an FBI agent forced a suspect to reveal his face to unlock his iPhone X. This case comes after a string of legal disputes in which law enforcement officers forced individuals to use their thumbprints to unlock their cell phones.
There is often confusion about what police officers can and cannot require you to do. This confusion can increase when technology moves quicker than the law. It is increasingly important to know your individual rights – including when and why police officers my lawfully require you to unlock your cellphone. Understanding the basic law that surrounds these situations is key.
The Fifth Amendment’s Protection Against Self-Incrimination
In a criminal case, a person cannot be forced to be a witness against themself. The Fifth Amendment states:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
In simpler terms, the Fifth Amendment protects against self-incrimination. This means that you cannot be compelled to provide testimony that reveals the contents of your mind. However, certain acts – although incriminating – are not protected by the Fifth Amendment.
Testimonial v. Nontestimonial
The Supreme Court has long held that there is a distinction between testimonial and nontestimonial acts. Only testimonial acts are protected by the Fifth Amendment. To be considered testimonial, a person’s communication must disclose information or relate a factual assertion. If not, a court will not consider a person was compelled to be a “witness” against himself. A person must be revealing the contents of his mind for the act to be testimonial.
On the other hand, nontestimonial acts do not require a person to transmit any knowledge, as they do not reveal the contents of a person’s mind. Some common examples of nontestimonial acts are:
- Standing in a lineup
- Furnishing a DNA, blood, or urine sample
- Having your photograph taken
- Providing a handwriting sample
- Providing fingerprints
Even though these acts are often incriminating, they do not reveal the contents of a person’s mind.
Why does this distinction matter? The method by which you choose to lock your cellphone can make the difference between being required to unlock it for a police officer or not. Police officers cannot force you to unlock your phone by a testimonial act that reveals the contents of your mind. You can be forced to unlock your phone by a nontestimonial act. Ultimately, it comes down to what knowledge is being transferred by unlocking your cellphone.
Cellphones can be locked in a variety of ways, but the most common methods are alphanumeric passcodes or passwords, pattern locks (swipe locks), finger/thumb prints, and facial recognition.
| TESTIMONIAL | NONTESTIMONIAL |
| 4-16 digit passcode/password | Fingerprint identification |
| Pattern lock | Facial recognition |
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It Depends on Your Cellphone’s Lock Method
Under the current law, police officers can require you to unlock your cellphone with facial recognition and fingerprint identification. However, police officers cannot require you to provide a pattern lock or a passcode/password to unlock your phone.
When you unlock your phone with a passcode/password, you are demonstrating to the police officer that you have knowledge of what the passcode/password is. By inputting the information to unlock your cellphone, you are essentially saying without words: “I know what the lock code is.” A police officer cannot make you input your passcode/password to unlock your cellphone because doing so would force you to produce the contents of your mind. The Fifth Amendment protects against this type of self-incrimination.
Alternatively, police officers can force you to use your face to unlock your cellphone because you are not disclosing any knowledge by simply holding the phone in front of your face. The same reasoning applies to fingerprint identification – police officers can force you to place your finger or thumb on the sensor to unlock your cellphone. These are nontestimonial acts which are not disclosing any knowledge.
It is easy to think that the private information stored on your cellphone is secure if you have any type of lock in place. That may be true when it comes to the general public not having access to your cellphone information. However, as it relates to law enforcement, even facial recognition or a fingerprint lock may not protect you. Having a pattern lock or a passcode/password on your cellphone is the safest way to ensure that police officers cannot force you to unlock it.
Protecting Your Rights
Berry Law helps to protect the rights of individuals and clients, especially the rights granted by the Constitution. Our team of criminal defense attorneys have experience fighting for individuals whose rights have been infringed by law enforcement and the government.
If you or somebody you know is facing criminal charges, contact a member of our team today to discuss your case and protect your rights.
