As Biometric Authentication Becomes More Prevalent, the Technology May Affect Criminal Constitutional Law

The ever-popular device manufacturer, Apple–mother of the iPhone–has announced that the next generation of the popular phone will use biometric authentication to unlock it. Biometric authentication is not an unfamiliar technology, especially for those fans of spy movies. The technology, which has been around for a few years in other applications, verifies a user’s identity by their unique fingerprint.
While many look forward to the new technology, certain repercussions of the technology remain alarming. For example, a recent article by Wired notes that, as the technology becomes more prevalent, it might affect our constitutional rights. Indeed, the article explains that, under the current legal system, courts can require defendants and witnesses to hand over non-testimonial evidence, such as physical evidence, say a key to a box. However, the courts cannot require a defendant or witness to incriminate himself by forcing him to testify against himself.
You Have the Right to . . .
The right to be free from self incrimination is commonly known as “pleading the fifth,” and refers to the Fifth Amendment to the US Constitution. That Amendment guarantees that citizens will not be required to testify against themselves. However, the right only applies to “testimonial” evidence. Testimonial evidence, the article explains, is evidence which “reveals the contents of your mind.”
The concern over fingerprint evidence is this: currently, courts cannot require a witness or a defendant to divulge a password, because doing so would require the defendant to “reveal the content” of his mind. However, if passwords are not combinations of letters and numbers that we keep in our minds, but are our unique fingerprints, perhaps courts could require defendants provide their “passwords” at trial.
Who Will Be Affected By the New Technology?
This would probably have the largest effect on white collar crime and identity crimes, where the use of a specific password would be at issue. Don’t be mistaken, the Fifth Amendment and all that it stands for will still apply in all contexts, however, biometric authentication might act as a way around the privilege in some cases.

However, this technology can actually affect any individual who uses the iPhone who stores information that could be used against them in a court of law. Therefore, it is important to know your rights in this area.


Charged with a Criminal Offense?
If you have recently charged with a criminal offense you need an experienced criminal defense attorney at your side to ensure that the police and prosecutors don’t violate your rights and send you to prison for an exorbitantly long sentence. A criminal defense attorney can help you negotiate with the prosecutor to see if there is any way to dismiss the case or maybe reduce the charges. Lauren K Johnson has filed many suppression motions where law enforcement has illegally obtained evidence.

Attorney Lauren Johnson is a Orange County criminal defense attorney and has the dedication and experience to make a difference in your case. Click here , or call 949-679-7745.