Touch ID may have Fifth Amendment consequences, says lawyer

Because the 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).

While IANAL, Marcia Hoffman certainly is. She has her own law practice, was senior staff attorney for the Electronic Frontier Foundation, and is an adjunct professor at U.C. Hastings College of the Law.

  • BC2009

    From what I understand,Touch ID cannot be used to unlock an iPhone 5S that has not been logged into for 48 hours. Unless they have your phone in evidence and then get you to court in less than 48 hours, then this is a moot argument. I don’t think the U.S. legal system works that quickly. The quote saw from Apple read:

    “Apple customers who wish the use Touch ID also have to create a passcode as a backup. Only that passcode (not a finger) can unlock the phone if the phone is rebooted or hasn’t been unlocked for 48 hours. This feature is meant to block hackers from stalling for time as they try to find a way to circumvent the fingerprint scanner”


  • Paul Judd

    And unless the cops want to assault you, they probably can’t force you to unlock your phone without a court order (basically a search warrant) anyhow – it only works with your actual finger. Anyhow, the courts would probably rule that since you are using a password (since you need to set one up in the first place), it would be legally treated the same.

    The only time law enforcement can take your fingerprints unwillingly is when you are being booked and then it’s used for identification purposes and evidence gathering. They can’t use it to gain access to other areas that have reasonable exceptions of privacy.

    Same thing with the fingerprint scanners on laptops – the cops still have to use normal evidence measures to gain access to such things independent of you being arrested and printed. You placing a protection on it that is tied to a password is probably enough

    • Joseph Blake

      There is absolutely no reason to believe that “courts would probably rule that…it would be legally treated the same”. Quite to the contrary, until they actually rule you should assume the worst.

      AT any rate, as was stated by a previous comment, after 48 hours you have to use a passcode which makes the whole fingerprint issue moot.

      And, you are correct that they would need a warrant or at the very least probable cause to compel you to unlock your phone whether it is with a finger print or passphrase. However, the Fifth Amendment protection is precisely for that case. If they present a warrant, your Fifth Amendment protection would allow you to quash the warrant. This is not in a situation in which you are sitting in an interrogation room and the cops are telling you that you must unlock your phone. At that point, regardless of the locking method, you are protected by your Miranda rights to remain silent.

  • albertkinng

    The feature is optional and you can turn it on or off, so basically this article is crap.

    • Joseph Blake

      Except that its an important thing to consider if you are deciding to use the option or not, so basically your comment is crap.

      • albertkinng

        LOL, I wasn’t insulting you just MHO. Anyway I think that if you have concerns (not you any costumer) then don’t use it. do you know how many things in life are unfair and people don’t care about it… that’s why I say is crap.

        • Joseph Blake

          Except that our rights under the constitution aren’t things we should just shrug off as “things that are unfair” and move on.

  • All you need to do is use the wrong finger multiple times then the pin is from your mind. 🙂

    • lucascott

      Yep that would potentially work.

  • JDSoCal

    Bullshit. And IAAL.

    • Sigivald

      I would tend to agree it’s at least overstated (IANAL, but I’ve been following this kind of thing for a while).

      Unsurprisingly she’s an EFF person.

      EFF is terrible on legal analysis, because they’re a one-trick pony that only gets attention and resources in the case of a Crisis.