Recent Virginia Case Carries Major Implications for Fingerprint Passcodes and Self-Incrimination

This article was originally published in the Spring 2015 issue of the Virginia Bar Association YLC Docket Call.

The ever-evolving technological landscape constantly elicits new and interesting questions of law. Privacy and data security are areas of contention and confusion for many. Why?  Because privacy limits are unclear because the reach of technology outpacing the evolution of the law. As cell phones have advanced, they have become essential to everyday life and are no longer merely phone used to make and receive calls. Cell phones are minicomputers filled with personal, and mostly private, information including calendars, alarm clocks, books, videos and photos. People store everything from grocery lists to banking information in phones. How do the laws that govern phones solely to make and receive calls apply to these new multifaceted devices? Courts and lawmakers are slowly answering that question.

In Reily v. California, the Supreme Court shed some light on privacy limits regarding cell phones.[1] The Court held that the police generally may not, without a warrant, search digital information on a cellphone seized from an individual who has been arrested. The Court characterized cell phones as minicomputers filled with massive amounts of private information, which distinguished them from the traditional items that can be seized from an arrestee’s person, such as a wallet. This ruling is a necessary stride towards deciphering how the Fourth Amendment applies in this digital age but leaves a lot of unanswered questions.

After obtaining a warrant to search a phone how will officers access the contents? Can officers compel the accused to provide one’s passcode or fingerprint? Existing laws do not apply smoothly and presents an interesting question: Is producing one’s passcode or fingerprint to allow access to digital information on a smartphone testimonial communication subject to the Fifth Amendment privilege against self-incrimination?[2] This was the question answered in the Virginia case Commonwealth of Virginia v. Baust.[3]

In Commonwealth of Virginia v. Baust, the defendant David Baust was indicted on charges of assault.[4] The victim alleged that video of the assault was on Baust’s smartphone.[5] The police obtained and executed a search warrant, retrieving (among other items) the smart phone.[6] However, the phone was “locked” and could only be entered using a passcode or fingerprint.[7] The court decided to review each method of entry separately under the Fifth Amendment and arrived at two different conclusions.

The court held that fingerprints and passcodes are different in the eyes of law because of the testimonial nature of providing a passcode, which violates the accused’s right not to incriminate him or herself. The Judge explained that Baust could not be compelled to provide his passcode to access the smartphone, but could be compelled to produce his fingerprint to access the phone.[8] Producing the passcode would require the defendant to divulge knowledge—information from his own mind, placing it in the testimonial realm.[9] However, he concluded that a personal fingerprint does not require any similar knowledge—it is equivalent to a key that fits into a lock.[10]

This legal distinction will have a major impact on smartphone users, especially as providers market the increased security of these alternate access mechanisms. Your fingerprint is advertised as a more secure method for accessing tour phone but presents vulnerability if ever compelled to provide access to your phone. The legal differences may not be clear to users, as the passcode and the fingerprint are functionally equivalent. Should they really be distinguished under the law? Is there a distinction between telling police a passcode and typing in the passcode so that police may gain access to a phone? By typing the code, the individual does not have to provide any knowledge (testimony) directly to the police, although still providing access to data that is potentially criminally incriminating. Is the outcome or the means more important, because although not a verbal testimony providing a fingerprint or writing a passcode may lead to criminally incriminating information?

This decision raises a lot of questions and determining privacy rights in our technology will only get more complex as technology continues to evolve. The court is being charged to assess the functional and technological implications of new technology and create laws with those perspectives in mind. This is a difficult balance. Consistency will also be important to citizens as they seek to protect themselves within the bounds of these laws.

Most immediately, in Virginia, you should protect your phone using a passcode, not your fingerprint.

 

 

[1] 134 S. Ct. 2473, 2477 (2014).

[2] Commonwealth of Virginia v. Baust, No. CR14-1439, at 2 (Va. 2d Cir. Ct. Oct. 28, 2014).

[3] Id. at 1.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 4.

[9] Id. at 5.

[10] Id.

SCOTUS rules that police need a warrant to search cell phones

As we become more reliant on our devices, they collect more data on us, much of which is extremely private. Access to this data has been a point of contention for some time. The Supreme Court’s decision to hear Riley v. California presented an opportunity to draw clear boundary for police in the area of personal privacy.   Privacy groups have been advocating for requirements on how and when cell phone data can be accessed and used by the government since that decision. On June 25, 2014,the Supreme Court announced a win for personal privacy by deciding that a warrantless search of a suspect’s cellphone data incident to arrest is unconstitutional.

Case Highlights

  • “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”
  • The Court observed that modern phones are mini-computers that perform multiple functions and hold immense amount of personal data, and were themselves inconceivable when the Court had originally permitted police to search individuals incident to arrest.
  • The Court acknowledged that searching a cell phone can potentially expose more information to the government than a search of an individual’s house, given the amount of data typical phones can store. The fact “that technology now allows an individual to carry such information in his hand does not make the information any less worthy of . . . protection.”
  • The Court makes clear that “Privacy comes at a cost,” and that the warrant requirement is “an important working part of our machinery of government” that must be respected.
  • The Exception: Although the Court dismissed all of the arguments that were presented for justification of a warrantless search they did say that in “exigent” circumstances like prevention of a terrorist plot or finding a missing child, that police are able to proceed without a warrant. However, after such a warrantless seizure, a court would still have to “examine whether an emergency justified a warrantless search in each particular case.”

Bottom line

From now on, your phone should not be searched just because you have been arrested. Officers must have a warrant to search your phone, aside from a narrow exception.

What’s Next

This case will play a major role in the already contentious debate surrounding personal privacy. It will be interesting to hear how this changes the application of Fourth Amendment protections to searches and seizures of all computers.