An iPhone owner’s thumb is the center of a legal controversy in California this week. A judge has ordered the owner of the phone to use a thumbprint to unlock the phone so police can get at the phone’s contents in a criminal case. The phone’s owner used the thumbprint as a security “biomarker,” to prevent others’ access to her device. See the ABC News story at
The case immediately prompts the question of whether the owner’s Fifth Amendment right against self-incrimination has been violated. The answer is likely no. This complicated area of law is a subtopic of the Fifth Amendment known as the “document production privilege,” and in the era of encryption and ubiquitous smartphones and other electronic data storage devices, we’re hearing a lot more about it.
The reason the court probably got this ruling right is that the act of using a thumbprint to unlock the phone is not “testimonial,” within the meaning of the law, and if it’s not “testimonial,” it’s not protected by the Fifth Amendment. Consider the difference between the phone owner’s creating a secret password, and then being forced to divulge that password to government authorities. In that case, the government would be compelling a person to reveal the contents of his or her mind — that’s classic “testimony” as the law defines it, and so the individual is protected by the Fifth Amendment privilege, and cannot be forced to share the means of accessing the phone. The government in these instances has to find another way of getting at the evidence, if it can.
But here, in the thumbprint case, we’re talking about something different. A “biomarker” such as a thumbprint is not “testimonial,” because to provide it, a person does not have to reveal the contents of his or her mind, does not need to even say a word. “Nontestimonial” evidence has long been outside Fifth Amendment protection. This is why, for example, there is no Fifth Amendment privilege against being placed in a lineup, or providing fingerprints, or DNA samples, or hair samples, or a blood test, or handwriting exemplars, or other types of evidence that do not require a suspect to speak or reveal anything going on in his or her head. The judge in the present case decided, likely correctly, that a biomarker means of accessing a smartphone is not testimonial, not privileged, and can be ordered lawfully.
What this defendant, the phone’s owner, should have done if she really wanted to keep her phone’s contents secret, is create a password only she would know. But most criminal suspects don’t regularly review Fifth Amendment jurisprudence, so it’s understandable that she wasn’t up to speed on the document production privilege. I’m guessing she is now.