Biometric Facial Recognition for Unlocking iPhone – Does it Violate the Fifth Amendment?

With the
overwhelming numbers of criminal mischief, the government seems to seek
resourceful leeway that may lead to the findings of valuable evidence in an
investigation. Among all feasible scenarios,  there is a possibility for the law enforcer to
request access to the criminal offender’s cell phone locked with latest facial
biometrics technology, including the technology of Face ID introduced by Apple.
Apple’s explains that Face ID revolutionizes authentication by utilizing the
advanced technologies to map the geometry of its users’ face and therefore allowing
customers to securely unlock their iPhone using a simple glance.

Recently in
August 2018, FBI compelled Grant Michalski, a Ohio resident, to unlock his iPhone
X with Face ID. As investigated by Forbes,
“a federal investigator told Michalski to put his face in front of the phone,
which he duly did.” Through this forced act, FBI was able to access the
contents of his iPhone, including saved images in the “photos” album
used by Michalski in Kik Messenger to engage on his sexual interest with other
offenders. So far, this could be the first case recognized that enables the
usage of forced Face ID in a criminal investigation. If this forced use of Face
ID was conducted with proper warrant – which indeed the warrant was served in
this case – then it is plausible the investigation will not bring salient
polemic because it has aligned with the Fourth
Amendment. However the questionable idea arises
on whether or not it would violate the Fifth
Amendment indicating that no person “shall be compelled in any
criminal case to be a witness against himself.”, or usually known as the a
principle against to the self-incrimination.

The gambit on
the interpretation of the “self-incrimination” was made under the Fisher v. United
States (1976), whereby the Fifth Amendment is only applied when a
defendant is forced to make testimonial communication that is incriminating. As
stated by the judge from case of Doe v. United
States (1988), “testimonial act” can be interpreted when an
accused’s oral or written communication, or act, explicitly or implicitly,
relates to a factual assertion or disclose information. The examples include
complying with a subpoena to produce documents as it would implicitly
communicate “statements of fact.”. However, it is pertinent to note that an act
is not “testimonial” when the act provides “real or physical evidence” that is
used “physical characteristics”.

With regard to
Face ID, up to this date the US Supreme Court has neither made any particular
decision regarding the utilization of Face ID in criminal investigation.
Nevertheless similar cases pertaining to other biometric identification,
specifically finger prints, emerges dispersedly through various lower courts
decisions. The first relevant case was 2014 Virginia court opinion under the
case of Commonwealth
v. Baust. An assault happened to a victim in a bedroom and Baust, as
the defendant, was believed to possess recording device that continuously
recorded the purported assault. The police took s Baust’s phone, underlying the
action based on the victim’s testimony that Baust’s equipment “could have
possibly” recorded the assault and the recording “may exist” on the phone. Yet
there is an encryption found either through passcode or fingerprint to access
the cell phone.

The judge in
this case further elaborated and gave distinction on the “testimonial
communication” between the production of the passcode and the finger prints to
access a smartphone. The judge said that Baust cannot be compelled to produced
his passcode to access his smartphone but he can be compelled to produce his
fingerprint to do the same because its creation was voluntary i.e. not
compelled. This creation leads to the conclusion that “it would not protected
against disclosure.”. Further it was said “like physical characteristics that
are non-testimonial, the fingerprint of Defendant if used to access his phone
is likewise non-testimonial and does not require Baust to communicate any
knowledge at all.”. Whereas production of password requires Baust to “disclose
the contents of his own mind.”.

The similar
decision found in Minnesota Supreme Court recently in January 2018 (State
v. Diamond). In this case, “Diamond merely provided his fingerprint
so that the police could use the physical characteristics of the fingerprint to
unlock the cell phone.” It was further stated “to the extent that providing a
finger print to unlock the cell phone might require a mental process to unlock
the phone, the police did not to rely on that mental process here.” (as refer
to Hubbel case
in 2000).  In addition, the Judge compared
the fingerprint results that went through fingerprint matching program was
similar with the process taken through blood sample which depended on the
chemical analysis of the blood, not the act of providing the blood sample.

The
abovementioned cases slightly show different treatment for the use of passcode
as iPhone unlocking method, as some case precedents in these area were less
murky than the use of finger prints. As referred to the US vs. Doe case,
the act of unlocking an iPhone using passcode will demand the use of contents
of mind and the production of a combination is accompanied by implied factual
statements that could prove to be incriminatory and hence be categorized as a
testimony. A recently issued case from Indiana
Appeals Court in August 2018 also exposes its firm position to the
use of passcode as forced act before the law enforcer. However it is
interesting to observe the progressive view of the judge in question, opining
the court so far held no Fifth Amendment problem with compelling a person to
something that displays a physical characteristic, yet they see “this reasoning
is outdated and ironic when compared with the current, heightened,
“state of the art” electronic security provided by physical
characteristics such as facial recognition and retinal scans.”

This latest
decision emerges the idea on how the future judgment and interpretation may be applied
to the forced act of law enforcer using Face ID. Considering that Face ID will
include the use of face as physical characteristic to unlock the iPhone, the
similar opinion evaluating that the physical characteristic is not a part of
testimonial act will have a tendency to prevail.

I personally
inclined to the thought that by giving either a Face ID or even a Touch ID, we
are actually opening the access to the information inside the iPhone, which
will incriminatory to customer as the data owners. By utilizing the iPhone
through Apple Face ID or Touch ID, it will give direct access to its contents
and it will touch the functionable fashion of the iPhone. Furthermore in
obtaining the data of the iPhone using Face ID, there is less possibility for
the creation to occur voluntarily and without compelled action as assumed in
fingerprint case under 2014 Virginia court opinion, because the offender can
just be propelled to show and get his face scanned. This action supposedly
obtain stronger position from the law prospective, rather than loss its
protection before the law because of the existing cases.

To this extent, it
is important for the technology users to understand facial biometrics
technology may not deliver the desired safeguards before the law enforcer. However
as similar with the Touch ID, the users may get protection from the disability
systems installed by Apple in Face ID, whereby the Apple ID will be
disabled and switched to passcode mode if there have been five
unsuccessful attempts to match a face. Whereas there may be advantageous possibility
derived for this disability system when investigation happened to an offender,
the technology user still need to consider changing the iPhone protection with
the passcode instead of the Apple Face ID or finger print to avoid the
unexpected exertion of the user’s own cell phone.

Hana Monica Hutabarat is an LLM candidate, 2019, at NYU School of Law.