Parya Mahmoudi


I. Introduction

“Recent rulings conflict on whether police can force individuals to unlock their smartphones.”[1] Whether you are compelled to do so depends on your geography, with different court rulings from coast to coast.[2] In its 2014 decision, Riley v. California[3], a unanimous Supreme Court held that a warrant is “generally required” before searching a cell phone seized incident to an arrest, unless there is a need to prevent the imminent destruction of evidence, pursue a fleeing suspect, or assist persons who are injured or threatened with imminent injury.[4]

Today, however, with modern encryption and password technology, a warrant is useless unless the government can force a person to unlock their phone.[5] In other words, securing a warrant is only half the battle.[6]

In its 2019 decision, in In the Matter of the Search of a Residence in Oakland, California (hereafter Oakland), the United States District Court of Northern California held that forcing a person to provide a biometric feature to unlock their phone violates the Fifth Amendment.[7] In stark contrast to this decision, the highest court in Massachusetts recently ruled in Commonwealth v. Dennis Jones (hereafter Dennis) that the State can compel a person to unlock their phone as long as it can prove beyond a reasonable doubt that the person knew the password.[8] Until the Supreme Court decides exactly what is required to search a cell phone, the issue is unsettled and different rules apply depending on where you live and travel.

II. A Moral Imperative: The Fifth Amendment Privilege

The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.”[9] Probable cause to seize devices during a lawful search based on a reasonable belief that they belong to a suspect, does not compel a suspect to waive rights afforded by the Fifth Amendment right against self-incrimination.[10] The privilege against self-incrimination applies “when the accused is compelled to make a testimonial communication that is incriminating.”[11] Even if probable cause to search and seize exists, probable cause does not permit the Government to compel a suspect to waive a different set of rights—such as the right against self-incrimination—afforded by the U.S. Constitution. Thus, it is a moral imperative that courts recognize the Fifth Amendment privilege in compelling phone access.

 III. Biometric Passwords: Testimonial?

A. In the Matter of the Search of a Residence in Oakland, California

In Oakland, a recent United States District Court of Northern California decision, the court held that forcing a person to provide a biometric feature to unlock their phone violates the Fifth Amendment.[12] The court ruled that federal authorities cannot compel suspects to unlock their phones with biometric features, calling an FBI warrant application “an abuse of power” and “unconstitutional.”[13]

In Oakland, the suspects allegedly used Facebook Messenger to communicate with a victim and threatened to distribute an embarrassing video of the victim if the victim did not pay money.[14] The Government submitted an application for a search and seizure warrant to seize items, including electronic devices, in the suspects residence.[15] The court concluded that there were sufficient facts to support a finding of probable cause to conduct a search of the premises.[16]

The Government, however, requested authority “to compel any individual present at the time of the search to press a finger (including a thumb) or utilize other biometric features, such as facial or iris recognition, for the purposes of unlocking the digital devices” found during the course of the search.[17] This particular request, the court found as an abuse of power and unconstitutional. In denying the search warrant application, the court ruled that the Government’s request runs “afoul of the Fourth and Fifth Amendments.”[18]

In Oakland, the court recognized that while “securing digital devices is not a novel concept, the means of doing so have changed.”[19] Consumers utilize numeric or alpha-numeric passcodes to lock their devices for decades.[20] Today’s technology, however, allows citizens to enter passcodes by utilizing biometric features.

The issue in Oakland was whether a suspect could be compelled to use his finger, thumb, iris, or other biometric feature to unlock a digital device.[21] And, whether the use of a suspect’s biometric feature to potentially unlock an electronic device is testimonial under the Fifth Amendment.[22] In resolving this question, the court turned to whether this would require the compulsion of a testimonial communication that is incriminating.[23]

In determining whether biometric passwords are testimonial, the court recognized several distinctions.[24] Testimony is not restricted to verbal or witten communication.[25] “Acts that imply assertions of fact can constitute testimonial communication for the purposes of the Fifth Amendment.”[26] Certain acts, however, while incriminating, are not within the Fifth Amendment privilege.[27] These include furnishing a blood sample, submitting to fingerprinting, or standing in a lineup.[28]

The court held that utilizing a biometric feature to unlock an electronic device is different in two fundamental ways.[29] First, because biometric features have the same purpose as a passcode, the function is equivalent.[30] The court reasoned that because a passcode is required at times “when a device has been restarted, inactive, or has not been unlocked for a certain period of time,” it is a security feature to ensure that only those with a passcode access the phone.[31] “[If] a person cannot be compelled to provide a passcode because it is testimonial communication, a person [likewise] cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device.”[32] Second, the court reasoned that the act of unlocking a phone with a finger or thumb confirms ownership or control of the device and all of its contents.[33] Thus, the court held biometric features are testimonial.[34]

The Oakland court rejected the foregone conclusion doctrine.[35] The foregone conclusion doctrine is an application of the Fifth Amendment “by which the government can show that no testimony is at issue.”[36] This occurs when the “existence and location” of the documents under subpoena are a foregone conclusion, “and the witness adds little or nothing. . . . to the Governments information.”[37] Where the forgone conclusion doctrine applies, testimony is not at issue, and Fifth Amendment self-incrimination concerns are eliminated altogether.

B. Commonwealth v. Dennis Jones

In Dennis, the defendant was charged with trafficking a person for sexual servitude.[38] The State seized the defendant’s cell phone, and during the course of its investigation, the State “developed information leading it to believe the contents of the cell phone included material and inculpatory evidence.”[39] The State was granted a search warrant to search the cell phone, but the search warrant had yet to be executed because the State was unable to access the cell phone’s contents due to the device’s password encryption.[40]

In line with stare decisis, the Dennis court reaffirmed Commonwealth v. Gelfgatt.[41] The court reasoned that although the “foregone conclusion exception originated in the context of the compelled production of documents in response to a government subpoena, [the court] extended its application to the compelled production of passwords to encrypted devices in Gelfgatt.”[42] The court reasoned that if the government can establish that it already has knowledge of the testimony in the required production, the foregone conclusion doctrine applies.[43]

In applying the foregone conclusion doctrine, the court reasoned that “the only fact conveyed by compelling a defendant to enter the password to an encrypted electronic device is that the defendant knows the password, and can therefore access the device.”[44] Thus, in the context of compelled decryption, the court ruled that the State can compel a person to unlock their phone as long as it can prove beyond a reasonable doubt that the person knew the password.

 IV. Conclusion

Travelers remain in limbo as courts differ in judgement in compelling biometric passwords under the Fifth Amendment. “Technology is outpacing the law,”[45] with the tech industry being reactive, not proactive about regulation, until an issue arises. Smartphones are engrained in nearly every Americans’ life. This issue has a widespread effect on the tech industry, consumers, and state and federal governments. Perhaps with the Fifth Amendment as a moral imperative, the U.S. Supreme Court will soon address this issue.

[1] Chase Goldstein & Thomas Zeno, Travelers Beware –Compelled to Open Your Phone?, The Anticorruption Blog (Mar. 20, 2019), https://www.anticorruptionblog.com/courts/travelers-beware-compelled-open-phone/.

[2] Id.

[3] 571 U.S. 1161 (2014).

[4] Goldstein, supra note 1.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] U.S. Const. amend. V. 

[10] In the Matter of the Search of Residence in Oakland, California, 354 F.Supp. 3d. 1010, 1018 (N.D. Cal. 2019).

[11] Commonwealth v. Dennis Jones, 480 Mass. 540, 561 (2019) (citing Fisher v. United States, 425 U.S. 391, 408 (1976)).

[12] Goldstein, supra note 1.

[13] Jason Tashea, Compelling Biometric Features to Unlock Phones is ‘Abuse of Power,’ U.S. Judge Rules, American Bar Association Journal (January 17, 2019), http://www.abajournal.com/news/article/compelling-biometric-features-to-unlock-phones-is-an-abuse-of-power-rules-u.s.-judge.  

[14] 354 F.Supp. 3d. at 1013.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id. at 1015.

[20] Id.

[21] Id. at 51,122–23.

[22] Id.

[23] Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 400, 110 Stat. 2105, 2260.

[24] Id.

[25] Inadmissibility on Public Charge Grounds, 83 Fed. Reg. at 51,134–35.

[26] Em Puhl, Erin Quinn, & Sally Kinoshita, Immigrant Legal Resource Center, An Overview of Public Charge 2 (2018). Noncitizens who are exempt or eligible for waivers include refugees and asylees, T- and U-visa holders, special immigrant juveniles, VAWA self-petitioners, Temporary Protected Status applicants, and individuals applying to renew DACA. Id.

[27] Protecting Immigrant Families, Proposed Changes to Public Charge: Quick Analysis 7 (Sept. 28, 2018); Inadmissibility on Public Charge Grounds, 83 Fed. Reg. at 51,175.

[28] Inadmissibility on Public Charge Grounds, 83 Fed. Reg. at 51,133 (“In other words, although a [noncitizen] may obtain benefits for which he or she is eligible, the receipt of those benefits may be considered for future public charge inadmissibility determination purposes.”).

[29] Protecting Immigrant Families, supra note 27, at 4.

[30] INA § 212(a)(4)(B).

[21] Id.

[22] Id.

[23] Id. (citing Fisher v. United States, 425 U.S. 391, 409 (1976).

[24] Id.

[25] Id.

[26] Id. (citing Doe v. United States, 487 U.S. 201, 208 (1988).

[27] Oakland, 354 F.Supp. 3d. at 1015.

[28] Id.

[29] Id.

[30] Id.

[31] Id. at 1015–16.

[32] Id. at 1016.

[33] Id.

[34] Id.

[35] Id. at 1018.

[36] Id. 1016–17. (citing In Re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d 1335, 1343 n. 19 (11th Cir. 2012).

[37] Oakland, 354 F.Supp. 3d. at 1017.

[38] Dennis, 480 Mass. at 541.

[39] Id.

[40] Dennis, 480 Mass. at 541.