You can now press a button to escape the constitution!

 

That’s right, you can now press a button to escape the constitution of the United States. Well, more accurately, you can now press a button on your phone to escape a fourth and fifth amendment loophole that allows courts to rule against you when it comes to unlocking your phone using biometrics. Yes, it’s that simple.

Phones, buttons, biometrics, passwords, constitution, a crazy mix of things. Yet another example of how technology is outpacing the law. For the purposes of this blog article, we will only be taking United States law into consideration. The fourth and fifth amendment to the constitution currently protects your phone’s password from being used against you in legal matters. It falls under laws protecting you from self-incrimination since once you unlock your phone and evidence against you pops up in that phone, you would have self-incriminate yourself and therefore you are protected by the constitution to not give up the password. Like many other things, biometrics were not taken into consideration when these amendments were being made. No one could comprehend that in a few hundred years, passwords would be used to unlock entire computers that fit in the palm of a hand let alone biometrics. The good thing about passwords though, is that they are something you know. They exist purely in your mind unless they are written somewhere. They are your property and you can choose to give it away or not (in a utopia without hackers). Since it is information you know, you are not required to give it up on search warrants.

Biometrics, however, is different. They are not something you know but something you possess. Human fingerprints are physical entities, not information. This is where it gets murky. Last year in 2020, a federal court in Kentucky ruled that the government may compel individuals to unlock devices using biometrics using the execution of a search warrant without violating the individual’s Fourth or Fifth Amendment rights.

The federal government sought to obtain a search warrant to seize evidence on cellphones, computers, and other electronic devices found on the premises that contain evidence of or were the instruments of, alleged crime. That warrant also sought authorization to force all individuals present to provide biometrics to unlock devices.

Courts requesting individuals or phone manufacturers to unlock devices has been a norm. In 2016, after the San Bernardino incident, Apple was ordered by the government to unlock a criminal’s phone. This criminal was directly tied to the San Bernardino incident. Even though unlocking this phone would have meant an easier court procedure and arrest of other criminals tied to the network, Apple refused to do so. The full letter by the company’s CEO, Tim Cook, can be found here. This was all done under the warm protection of the All Writs Act and the amendments passed hundreds of years ago. Biometrics changes that. The iPhone in question from the Bernandino case was an iPhone 5C. This iPhone did not have any form of biometric sensor. The world sure would have been different if there was a touch sensor and the criminal under custody was ordered to unlock it. Apple would not have been able to do a thing.

Back to the topic, so how do you tread these weird, muddy waters? If your phone has biometrics enabled, for most phones, you can hold the power button or the home button depending on the make and model and turn off the biometrics option. Your phone would then only need a passcode to unlock. So the next time a cop stops you and gives you a search warrant for your phone, press the power button on your phone to disable biometrics, and voila, your phone Is now out of the warrant’s jurisdiction.

(For legal reasons: This is an opinion article for my College capstone course. This is not legal advice and I am not responsible if you decide to try anything mentioned in this article and end up in jail or worse. Don’t believe everything on the internet, unless it’s about 5G and Bill Gates.)