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Will This Court Ruling Make You Rethink Fingerprint Unlocking?

By William Peacock, Esq. on November 04, 2014 10:30 AM

I have to admit: The idea of fingerprint unlocking is pretty damn appealing. Passcodes? Too much work. Like, four digits worth of work. And those little swipey gesture things you can do on Android? They work, I suppose, but it's so hard to get those correct without looking when driving.

Plus, you can't crack a fingerprint. You can crack a passcode.

However, a judge in Virginia just complicated the equation a bit with a simple reminder of legal precedent: A fingerprint isn't constitutionally protected, but a passcode is. This means that police need a warrant to search your phone (thanks, SCOTUS) but even if they get one, they may not be able to get past the lock screen.

Domestic Violence and a Passcode

The Virginia case started with an alleged attempted strangulation. Police say that David Baust tried to strangle his girlfriend and that video equipment located in his bedroom may have captured the incident. And maybe, just maybe, the video might be on his phone. Bum-bum!

Except, his phone was locked. Oddly, despite the court's opinion diving into passcodes, fingerprints, and the Constitution, neither the parties to the case, nor the news outlets in Hampton Roads, Virginia, are quite sure whether Baust was using Apple's Touch ID or a passcode, reports The Virginian-Pilot.

But that's not the takeaway that matters to any of us, is it? We're more interested in the legal outcome: No protection for Touch ID, but plenty of protection for compelling passcodes.

Fifth Amendment

I'm not ashamed about it: I was way too enamored with the idea of a convenient and (arguably) more secure method of unlocking my phone that I didn't even consider the Fifth Amendment implications of a fingerprint versus a passcode.

But Prof. Marcia Hofmann, formerly of the EFF, writing at Wired, did. She called it last year: "[T]he constitutional protection of the Fifth Amendment, which guarantees that 'no person shall be compelled in any criminal case to be a witness against himself,' may not apply when it comes to biometric-based fingerprints (things that reflect who we are) as opposed to memory-based passwords and PINs (things we need to know and remember)."

That was the gist of the judge's ruling and it serves as a good warning to everyone: Your fingerprint may keep the criminals away, but it may not be able to stop law enforcement.

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