Americans have grown increasingly dependant on technology over the last few decades, and the law seems unable to keep up. Indiana is appealing a case regarding the testimonial nature of fingerprints that can be used to unlock devices, saying that making someone unlock a phone with their fingerprint is a violation of the Fifth Amendment, reports Tech Dirt.
In the past, these types of cases have deemed fingerprints non-testimonial, claiming that they are obtained during booking anyway and parts of the human body can’t be used as testimony. Many courts have deemed that the compelled production of passwords—fingerprints or otherwise—has nothing to do with the fifth amendment, but defendants believe that it inherently requires people to give up private information that can be used against them. This argument has not had much success.
A case from Indiana’s Court of Appeal took on the government’s belief that passwords are not testimonial:
[W]e consider [Kaitlin] Seo’s act of unlocking, and therefore decrypting the contents of her phone, to be testimonial not simply because the passcode is akin to the combination to a wall safe as discussed in Doe. We also consider it testimonial because her act of unlocking, and thereby decrypting, her phone effectively recreates the files sought by the State. As discussed above, when the contents of a phone, or any other storage device, are encrypted, the cyphertext is unintelligible, indistinguishable from random noise. In a very real sense, the files do not exist on the phone in any meaningful way until the passcode is entered and the files sought are decrypted. Thus, compelling Seo to unlock her phone goes far beyond the mere production of paper documents at issue in Fisher, Doe, or Hubbell. Because compelling Seo to unlock her phone compels her to literally recreate the information the State is seeking, we consider this recreation of digital information to be more testimonial in nature than the mere production of paper documents.
By appealing this issue, Indiana is asking state judges and law enforcement agencies to find less controversial ways to obtain evidence. Though the case is limited to the state of Indian, it could spark a new way to look at the constitutionality of obtaining passwords.
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