“You Have the Right to Remain Silent(?)”: An Analysis of Courts’ Inconsistent Treatment of the Various Means to Unlock Phones in Relation to the Right Against Self-Incrimination

By Thomas E. DeMarco, University of Maryland Francis King Carey School of Law, Class of 2023[*]

Riley and Carpenter are the most recent examples of the Supreme Court confronting new challenges technology presents to its existing doctrines surrounding privacy issues. But while the majority of decisions focus on Fourth Amendment concerns regarding questions of unreasonable searches, far less attention has been given to Fifth Amendment concerns. Specifically, how does the Fifth Amendment’s protections against self-incrimination translate to a suspect’s right to refuse to unlock their device for law enforcement to search and collect evidence from? Additionally, how do courts distinguish between various forms of unlocking devices, from passcodes to facial scans?

Introduction

Riley[1] and Carpenter[2] are the most recent examples of the Supreme Court confronting new challenges technology presents to its existing doctrines surrounding privacy issues. But while the majority of decisions focus on Fourth Amendment concerns regarding questions of unreasonable searches, far less attention has been given to Fifth Amendment concerns.[3] Specifically, how does the Fifth Amendment’s protections against self-incrimination translate to a suspect’s right to refuse to unlock their device for law enforcement to search and collect evidence from? Additionally, how do courts distinguish between various forms of unlocking devices, from passcodes to facial scans?

This comment will primarily examine Supreme Court and federal jurisprudence surrounding the means of self-incrimination under the Fifth Amendment in Part I. Part II will cover how courts at all levels have applied the doctrine to cellular device unlock mechanics, both with regards to passcode and biometric locks. Part III will discuss application issues with the inconsistencies present in current case law, as well as offer suggestions of what courts can do to provide a more uniform and consistent doctrine.

I. General Fifth Amendment Jurisprudence

The Fifth Amendment to the Constitution protects against self-incrimination;[4] in other words, the Fifth Amendment states that the government cannot force individuals involved in criminal matters to act as a witness against themselves. Over time, the jurisprudence surrounding this right has been interpreted to include not just the literal act of calling one up to the stand and having them testify against themselves, but also protects the disclosure of “communications or communicative acts [that] can lead to an individual impermissibly bearing witness against him or herself.”[5]

The judiciary looks at three factors when determining if a communicative act is protected under the Fifth Amendment: 1) whether the act is compelled; 2) whether the act incriminates the individual; and 3) whether the act is considered a “testimonial.”[6] While courts consider all three factors, it places the most weight on the latter and considers it determinative in analyzing whether a communicative act is protected.[7]

In order for a court to consider an act a testimonial, it “must itself, explicitly or implicitly, relate a factual assertion or disclose information.”[8] For over a hundred years, courts have attempted to balance the protection against self-incrimination with the government’s interests in preventing crime and protecting the public, with Holt first suggesting the line should be drawn between purely physical actions and communications in 1910.[9] Decades later, Doe II elaborated on this further by giving an analogy of surrendering the key to a strongbox as opposed to providing the combination to a safe’s lock.[10] In both cases, the Court saw the distinction as such: if a defendant is providing a physical characteristic of themselves, it carries no implicit nor explicit factual assertion and is not protected by the Fifth Amendment. But if a defendant’s actions carry communicative content that can be used against them in a court of law, it qualifies as a testimonial and is protected by the Fifth Amendment.[11]

Over the development of this doctrine, various physical actions have been held to not qualify as testimonial, and therefore are afforded no protections by the Fifth Amendment. These include: blood samples,[12] voice and handwriting exemplars,[13] trying on clothing,[14] and speaking in a lineup.[15] In none of these cases was the defendant compelled to reveal a fact about their state of mind; they were, in the courts’ eyes, merely performing a physical action that betrayed no knowledge that could be used against them.[16]

This difference is made clearer when applied to compelled document production. The Court has been more likely to protect this action “because the responding party may need to ‘make extensive use of “the contents of his own mind” in identifying the . . . documents responsive to the requests in the subpoena.’”[17] This “contents of his own mind” language was alluded to in Justice Steven’s Doe II dissent.[18] In producing a key for a lock, an individual is not disclosing any information in their mind; they are simply performing the physical action of handing a key over. Possessing the key does not mean they are aware of what the lock is protecting; they may simply have been asked to hold onto the key. But for a safe combination, an individual would have to disclose information in their mind – implying that they are aware of how to access the safe, and therefore know what the contents are.[19] Because this would lead to using an individual’s own knowledge against them in a court of law, it is considered testimonial and therefore protected by the Fifth Amendment.

II. How Phones Fit Into the Established Testimonial Framework

There is no denying the ubiquity of smartphone technology in the world currently.[20] Everyone has one, and we use them for everything. As such, there is a plethora of intimate information stored on smartphones.[21] Whether in the form of an email, text, social media post, picture, or even an alarm reminding someone to take a prescription drug, there is no shortage of personal information stored on phones. Even the judiciary, not known for its ability to keep up with rapid societal changes, acknowledges the status cell phones have come to hold.[22] What happens when a smartphone is used for the commission of a crime? What happens when law enforcement tries to compel the use of this information against its owner?

These questions have not been directly confronted by the Supreme Court yet. Nevertheless, multiple state, district, and circuit courts have tried to navigate the waters on their own, using the Supreme Court’s doctrine on document production as a guiding light. Over the last four years, an emerging doctrine has formed at the federal level, bifurcating the courts by splitting them along the means of unlocking the phone in the same way the Supreme Court distinguished between physical actions and communicative acts.[23]

 A. The judiciary treats passcodes as testimonials.

The first part of the doctrine concerns unlocking phones that are locked with a passcode. The court analogizes this method of unlocking with the production of a safe combination; in other words, it is using the individual’s knowledge against them, qualifying it as a testimonial and therefore protected.[24]

In the cases that the government has attempted to override privacy concerns, it has relied upon the “foregone conclusion” exception. For these cases, the state argues that because it already knows the information on the device, its communicative nature becomes moot. In other words, since the government already knows the information, the defendant is not actually communicating anything by disclosing it.[25] However, the government’s burden in this instance is high – it must prove beyond a reasonable doubt that it knows of the information, and the defendant’s disclosure of the sought information would be redundant to the government’s investigation.[26]

The Indiana Supreme Court in Seo applies this analysis to the facts of the case presented to them. The court refuses to extend the foregone conclusion exception to the government on the grounds that it could not prove it already knew the information on the phone when it attempted to compel Seo to unlock it.[27] The court additionally explains why extending the foregone conclusion exception to phones is irregular by providing several considerations.

First, the exception does not account for the ubiquity and capacity of smartphones.[28] It is one thing for the government to try and assert that it knows the information contained on a document such that the communicative nature of it is rendered moot. It is quite different to say the same thing about a smartphone, something with a massive storage capacity that goes with its owner everywhere, and which the information contained on it is ever-changing.[29] Second, the exception is impractical to apply. There is no way to access a specific part of a phone; once it is unlocked, the possessor has access to everything on the device.[30] Finally, the exception runs counter to precedent. Riley and Carpenter refused to extend search-incident-to-arrest and third-party doctrines to phones, and these doctrines have far more support in jurisprudence application than the foregone conclusion exception.[31] Additionally, the relevant cases applying the exception all deal with documents, not phones.[32]

In another instance where a state court draws heavily on federal precedent, the Oregon Supreme Court in State v. Pittman applies the same analysis to arrive at the same conclusion.[33] It also grapples with the state constitution’s additional protections against self-incrimination,[34] and arrive at a slightly different conclusion for when an exception is warranted; in Oregon’s case, it is when the state provides immunity for the communicative acts it is compelling.[35] If this transaction is accomplished between state and suspect, the contents of the communication cannot be held against the suspect after relying on the immunity to produce the evidence.[36]

In a rare instance where the foregone conclusion exception was found to apply to the circumstances, the Supreme Judicial Court of Massachusetts found in Commonwealth v. Jones[37] that because of supporting cell-site location information obtained by law enforcement, as well as other information gathered, the defendant’s knowledge of the passcode to the phone was a foregone conclusion and compelling him to unlock it did not violate any protections.[38]

By contrast, and more consistent with other courts’ findings, the Pennsylvania Supreme Court came to the opposite conclusion a mere eight months later.[39] In considering whether law enforcement compel the owner of a laptop to provide the password to access alleged child pornography on the device, the court aligned with Indiana and Oregon by finding that the testimonial nature of such a disclosure triggered Fifth Amendment protections.[40] The court found that granting Fifth Amendment protections given the facts in this case was entirely consistent with Supreme Court precedent, and protecting it was far more important to principles of justice than giving the foregone conclusion exception.[41] Most importantly, the court noted that the exception is largely pointless; because the information must be superfluous to the government’s case in order to qualify as a “foregone conclusion”, then their failure to obtain it will not harm their case.[42]

While the foregone conclusion exception can force suspects to surrender testimonial information otherwise protected by the Fifth Amendment, in general courts have held that passcode information is testimonial and protected, and the government has a high burden to meet if it wants to compel suspects to surrender the information anyway.

B. The judiciary is less consistent with regard to biometric data.

The other half of the unlocks-as-testimonials doctrine relates to biometric data.[43] Here, instead of the suspect inputting a passcode they are recalling from their mind or communicating verbally to law enforcement, they are putting their finger on the screen, or merely looking at the phone, to unlock it. While there is a clear majority when it comes to jurisprudence on this issue, it is by no means universal.[44]

A majority of courts at all levels agree that forcing a suspect to unlock their phone using biometric data is not testimonial and has no protection under the Fifth Amendment.[45] The courts again use Justice’s Stevens analogy of a key and a safe. In the eyes of most judges, a biometric unlock of a phone is more akin to the handing over of a key; it is seen as a physical action that carries no testimonial implications with it.[46]

A plethora of courts have explained their reasoning behind this in recent years. The Northern District of Illinois found in Barrera that biometric unlocks were more similar to physical production than verbal communication.[47] It justifies this finding in several ways. First, “body part[s] used to essentially determine whether an item of evidence for a case (i.e., a cell phone) has any evidentiary value” have been held to qualify as physical actions in prior cases, with no testimonial value attached.[48]

Second, unlocking a phone grants access to the entire device, rather than the specific information the government is granting.[49] This is one of the distinguishing features between phone access and traditional document production; in the latter, the suspect must use their mind to sort documents relevant to the subpoena from irrelevant ones, evaluating the evidentiary value of each one as they sort.[50] With unlocking a phone via their fingerprint or face, all the suspect must do is place their finger on the device or, even more simply, look at it. In the same vein, the court found that physical acts which do not directly point the government to incriminating evidence do not count as testimonials; unlike providing relevant documents to the government, biometrics give the government a potential source of evidence without telling it exactly where to look.[51]

Finally, the court found that the implicit inference drawn from the biometric unlock procedure is insufficient to render the act a testimonial.[52] In the court’s eyes, the subject is not compelled to provide knowledge by performing the action, and thus, any inferences drawn from such physical actions cannot raise it to the level of a testimonial. Furthermore, non-testimonial acts are not converted to testimonials solely because of changes in the technology.[53]

Barrera is consistent with the Northern District’s earlier finding In the Matter of Search Warrant Application for [redacted],[54] where it ruled that compelled physical characteristics only carry an implication of the characteristic itself and not as an expression of the actor or their knowledge.[55] The Eastern District of Kentucky followed suit in In re Search Warrant No. 5165.[56] Once again, the court ruled that compelled biometric unlock has no implication towards intent or state of mind, and found it revealing that the Supreme Court has so consistently carved out exceptions for physical actions, implying that it sees a significant enough different between physical actions and communicative acts to warrant differential treatment.[57]

With Matter of White Google Pixel 3 XL Cellphone in a Black Incipio Case,[58] while the government already unlocked the phone via fingerprint by the time the case was litigated, the District Court of Idaho disregarded the mootness on the grounds that the issue is “capable of repetition, yet evades review.”[59] Accordingly, it cited that the majority of cases hold biometrics to not fall under Fifth Amendment privileges and sides with them in its ruling.[60]

Similarly, the Supreme Court of Minnesota found in Minnesota v. Diamond[61] that a fingerprint did not qualify as a testimonial for two reasons. First, the state only sought the fingerprint for its physical characteristics in unlocking the phone and not any implied communications in providing the fingerprint.[62] Second, much like its sister courts, it clarified that providing a fingerprint does not reveal the contents of the suspect’s mind.[63] It further explains that the suspect does not even have to be conscious to unlock the phone with their fingerprint, severely handicapping any argument that mental processes are involved in the production of a physical characteristic.[64]

Several times, the court has differentiated between the information on the phone and the means by which law enforcement seeks to retrieve it to clarify the issue at hand. It clarifies that “compelled” does not apply to the actual information sought by the government, only to law enforcement’s attempts to retrieve the information. This distinction has been used by several courts to explain their ruling of biometrics not falling under protections against self-incrimination. With Matter of Search of [Redacted] Washington, District of Columbia,[65] the District Court applied this reasoning and reaffirmed its sister courts in determining any biometric data was not subject to Fifth Amendment privileges.[66] In Commonwealth v. Baust,[67] the Circuit Court of Virginia made explicit that compelling a suspect to unlock their phone via passcode would violate the Fifth Amendment, but unlocking via fingerprint would not, even though the end result is the same.[68]

However, the courts are not unanimous in supporting this doctrine, with even the same court ruling both ways on biometrics. With In re Application for a Search Warrant,[69] the Northern District of Illinois ruled that biometric data was, in fact, production in the same way passcodes are.[70] While at odds with its own decision the same year,[71] the court found the government had not properly established a basis under which it could compel suspects to unlock devices with their fingerprints.[72] Acknowledging the Supreme Court’s Riley determination that the role cell phones have come to play in daily life affords them a higher degree of protection than other forms of potential evidence,[73] the District Court extended this to Fifth Amendment protections as well and denied the government’s attempts to unlock the phone via fingerprint scan.[74]

The Northern District of California reached a similar conclusion in Matter of Residence in Oakland, California.[75] The court held that biometric data could was, in fact, testimonial under the Fifth Amendment.[76] To support this decision, the court observes how some devices with biometric locks can nevertheless force the user to input a passcode under the right circumstances.[77] Seeing the current precedent as giving the government a loophole through which it can access information that would otherwise be restricted from seeing, the court puts biometrics into the same category of protection as passcodes.[78] Furthermore, the court distinguishes between compelling a suspect to fingerprinting and unlocking a phone via their fingerprint. Contrary to all other opinions discussed, the court finds that unlocking a device via fingerprint “concedes that the phone was in the possession and control of the suspect and authenticates ownership or access to the phone and all of its digital contents,”[79] the first time such reasoning has been applied by any court.

The District Court for the District of Nevada followed suit in this line of reasoning for its own decision in United States v. Wright.[80] It found that biometric unlocks functioned the same as a passcode, and are thus afforded the same protections.[81] With regard to facial unlocks, it found that the ability to do so carries an implication that you have unlocked the phone before, further implying you have some control over the device.[82] As such, it ruled that compelling a suspect to unlock a phone with their face does constitute a Fifth Amendment violation.[83]

While a strong majority in favor of biometric unlocks not qualifying under the Fifth Amendment exists,[84] there is nevertheless a minority of jurisdictions that see them as deserving the same protections as passcodes.[85]

III. Analysis

This section will be divided into two subcategories. Part III-A will discuss the issues the case law presents. Part III-B will propose potential solutions, including granting biometrics the same level of protections as passcodes and encouraging the adoption of a uniform doctrine for all jurisdictions.

A. Issues Presented by Case Law

Based on the above discussion, there are three primary issues present in the existing case law regarding biometric data. First, the inconsistency between jurisdictions goes against uniformity of the law and denies citizens equal protection depending on the security settings of their phone.[86]

i. The current doctrine lacks uniformity of the law.

As discussed above, the case law is not uniform in its rulings on whether all forms of unlocking devices deserve protections.[87] The courts have a well-established line of precedent separating various methods of unlocking devices, predominantly smartphones, with passcodes or words in one category of consideration and biometric data in the other.[88] Depending on the settings of their phone, an individual may have their phone’s data protected from compelled unlocking by law enforcement in one jurisdiction but not another. Inconsistencies and differences in the doctrine among the Circuit Courts is inevitable, but as a federal institution that strives for uniformity across the country, it is never an ideal sought to be perpetuated.

Even within a singular jurisdiction, it is not guaranteed that a defendant will have one consistent line of reasoning upon which to base their defense. The Northern District of Illinois has confronted the issue of compelled device unlocking via fingerprint three times in the last five years.[89] In all three cases, the Court was required  to determine if unlocking a device via fingerprint violates the Fifth Amendment, finding that such practices did not violate the Fifth Amendment only twice. [90] As a result, a defendant located within this district raising a Fifth Amendment question in their appeal will have to roll the dice on what line of reasoning to base their argument upon in order to succeed with their appeal. Likewise, the government must decide which angle it wants to assume when arguing such cases and whether the precedent of the district supports its position.   A party’s success in court should not hinge upon whether they correctly choose among two equally valid lines of reasoning from the same court.

ii. The current doctrine’s lack of uniformity is impractical.

While the divide between passcodes and biometric data is logical according to the legal doctrine, it is ripe for exploitation from parties in a practical setting. For example, some devices have a contingency function in which the device will force a user to unlock the device via passcode if biometrics have not been entered after a certain period of time.[91] If a device has this function, it raises questions about what the “true” method of unlocking the phone is. Is the lock method for legal purposes determined to be the lock method employed at the time of arrest? Or does this function imply that all phones are always locked via a passcode and a biometric unlock is merely a quality-of-life setting employed by the user to gain access to the device quicker in their everyday life?[92] If the latter, should that quality-of-life choice count against the defendant? If the government seeks a subpoena to compel the unlocking of a device before the arrest is made, is it because it is trying to exploit the case law and gain access to the phone through an unprotected means before the phone reverts to a protected lock?

The split in treatment also gives defendants avenues of abuse as well. The most obvious of these is changing the device’s settings upon entering a new jurisdiction to match the dominant case law in that particular region.[93] While unlikely to happen (generally lawbreakers are more concerned with, well, breaking laws than researching and following them), it is nevertheless an option afforded due to the history of the issue in the courts.

A far more likely avenue for defendants is deliberate sabotage. Devices often have a failsafe that permanently locks or wipes the data if the unlock procedure fails a certain number of attempts. [94] The suspect may deliberately use the wrong finger to attempt to unlock the device, triggering the failsafe.[95]

There are multiple flaws with the current legal doctrine that leave room for both parties to abuse at their discretion. These flaws also raise questions concerning whether a biometric lock is a true security measure or a mere quality-of-life improvement if the phone reverts to a passcode after a given amount of time.[96]

iii. The current doctrine does not properly consider biometric data

Another concern associated with the current doctrine is whether the dominant doctrine classifying biometric data as non-testimonial and, thus, not protected by the Fifth Amendment is even proper to apply. The Northern District of California has given this issue the most consideration.[97] The Court has questioned why, if a biometric unlock would access the same data a passcode, they are nevertheless afforded two different applications of the test.[98] It even goes a step further than other courts and proposes alternatives the government can pursue to obtain the data rather than directly from the suspect’s device.[99]

Multiple legal scholars and commentators have picked up on this thread as well. Bryan H. Choi, for example, analogizes the current state of the law “as though straw houses were legally shielded from police entry but brick houses were not.”[100] He references the minority of decisions that have refused to compel biometric unlocks as having an overarching theme of treating the device as an “extension of the subject’s mind.”[101]

Passcodes are additionally not necessarily as safe as the public may think, with a four-digit passcode able to be deciphered in mere minutes and a six-digit passcode decipherable in less than twelve hours.[102] Touch ID and later Face ID were introduced to combat this security shortcoming, as both consider data points far more unique than four digits.[103]

Yet, despite these practical security advantages, biometric data is afforded a lower standard of constitutional protection than passcodes.[104] This is especially problematic given tech companies’ reliance on advertising these security features to buyers as a benefit of purchasing the devices.[105] Companies like Apple and Samsung, for instance, are not incorrect when they advertise the use of biometric data as a tool to enhance the security of  their devices.[106] However, if the courts continue to predominantly hold that biometrics are not testimonial, then individuals are going to find themselves deprived of legal protections simply because of an informed decision to purchase a more secure device.[107]

Even the court system admits that the law has fallen far behind available commercial technology.[108] To actively ignore developments and afford newer technologies fewer protections seems counterintuitive and exacerbating an already-existing divide that shows no sign of shrinking anytime soon.

B. Potential Solutions

There are several approaches that federal district and circuit courts could take to solve the issues presented above. First, courts should recognize that the foregone conclusion exception does not practically work in the context of smartphones and other devices and refuse to extend it when the government requests for its application. Second, courts should broadly adopt the minority views by treating phones as extensions of the possessor’s mind. Third, courts should consider advocating for the government to seek other means of producing the data through more established legal doctrines.

i. The foregone conclusion doctrine is not conducive to digital technology.

The government can attempt to access evidence otherwise protected by the Fifth Amendment by successfully arguing that the information is a “foregone conclusion”; if the government can prove beyond a reasonable doubt that it already possesses the withheld information, any testimonial quality made by the defendant directly communicating the information is rendered moot.[109] While the government has successfully made this argument in court,[110] the argument has failed far more times than it has succeeded.

Courts should continue this precedent and even go a step further by unilaterally refusing to allow the foregone conclusion exception to apply to technology. In the majority of cases discussed that have refused the apply it, courts cited concern over the harm it would cause to Fifth Amendment protections if it were more widely accepted and applied.[111] It is in the best interest of the courts not to jeopardize protections enshrined by the Constitution, and courts have a multitude of tools already at their disposal to handle challenges to these protections when they arise.[112] Choosing to avoid applying the foregone conclusion exception fits neatly into this judicial tradition.

ii. More courts should adopt the current minority view.

While a significant majority of state and federal courts hold that biometric data is not testimonial under current Fifth Amendment doctrine,[113] a small minority of courts has found otherwise under one rationale or another.[114] Going forward, more jurisdictions should adopt the minority view and hold that biometric data is testimonial.

Doing so would provide two benefits. First, uniformity of the law across jurisdictions would make it easier for the government and defendants to argue a consistent position for their respective cases.[115] As discussed above, the current inconsistencies can lead to situations where a party may not be entirely sure of the viability of their argument before the court.[116] Eliminating this inconsistency would also eliminate this element of uncertainty.

Second, it would allay the privacy concerns of those who see the current state of the law as an easy work-around for law enforcement to bypass security measures, particularly when alternative means are available.[117] While some states have begun reading in protections through their own constitutions,[118] these are not available if state law does not apply in the case or if the state judiciary in question has not yet read such rights into its constitution. More federal jurisdictions foregoing any distinction between passcodes and biometrics would eliminate this concern.

iii. The government should seek to obtain evidence through alternative legal doctrines.

If the foregone conclusion doctrine is rejected by courts and the device being examined is considered an extension of the user’s mind, the government still has options beyond securing a warrant to acquire the information.[119] The third-party doctrine is one such avenue.[120] .[121] By going directly to the companies storing the data, law enforcement completely bypasses any need to risk violating a suspect’s protections against self-incrimination.[122]

This suggestion is not without its own set of issues, however. The third-party doctrine raises concerns over Fourth Amendment protections;[123] thus, courts adopting this approach may be trading the risk of violating Fifth Amendment rights for the risk of violating Fourth Amendment rights.

While concerns about the Fourth Amendment are not unfounded, the third-party doctrine is still, for the moment, an established and accepted theory in the judiciary, with far more precedential support than the foregone conclusion exception.[124] It is far from a perfect solution, but it would be a step in the right direction. Furthermore, this is merely a suggestion for the government to apply third-party doctrine arguments in lieu of foregone conclusion exception arguments. . While such an investigation into this question is beyond the scope of this paper, with how the Supreme Court has ruled on certain types of digital data in recent years, it is not impossible that they would refrain from extending the third-party doctrine to biometric data.[125] Regardless, so long as the doctrine is available to law enforcement, they should choose to apply it over the foregone conclusion exception.

Conclusion

The court system has dealt with Fifth Amendment protections on communications for over a hundred years.[126] However, recent advancements in technology, including in particular biometric authentication in smartphones, requires courts to apply this long-established legal precedent to entirely new and unfamiliar terrain. In doing so, courts have applied two separate frameworks, each affording different levels of protection depending on the user’s personal smartphone security settings.[127] A user looking for more security for their device will not have Fifth Amendment protections for their device should the government want to search it. For policy reasons, courts should adopt a singular doctrine that considers biometric unlock functions as testimonials under the law, thus deserving of Fifth Amendment protections, and encourage the government to use alternative means, in conformance with existing legal doctrines, to acquire information from devices using such functions.[128]

 

ENDNOTES

[*] © 2023, J.D. Candidate, University of Maryland Francis King Carey School of Law Class of 2023.

[1] Riley v. California, 573 U.S. 373 (2014).

[2] Carpenter v. United States, 138 S. Ct. 2206 (2018).

[3] Adam Herrera, Biometric Passwords and the Fifth Amendment: How Technology Has Outgrown the Right to be Free from Self-Incrimination, 66 U.C.L.A. L. Rev. 778 (2019).

[4] U.S. Const. amend. V.

[5] In re Search Warrant Application for cellular telephone in United States v. Barrera, 415 F.Supp.3d 832, 835 (N.D. Ill. 2019).

[6] Id.; see also infra note 7 and accompanying text.

[7] See Barrera, 415 F.Supp.3d at 836 (“But if a compelled act is not testimonial, and therefore not protected by the Fifth Amendment, it cannot become protected simply because it will lead to incriminating evidence.”).

[8] Doe v. United States, 487 U.S. 201, 210 (1988) (holding that because a consent directive did not implicitly or explicitly confirm the existence of accounts the government was attempting to search, signing it did not communicate a factual assertion about the existence of said accounts and was thus not protected by the Fifth Amendment.).

[9] Holt v. United States, 218 U.S. 245, 252-53 (1910) (“[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.”). See also infra note 11.

[10] Doe, 487 U.S. at 219 (Stevens, J., dissenting) (“A defendant can be compelled to produce material evidence that is incriminating . . . [b]ut can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not.”).

[11] Barrera, 415 F.Supp.3d at 837 (“…Justice Holmes explained that the self-incrimination clause’s purpose drew a distinction between compelling a person to communicate something to the government versus compelling a person to provide some physical characteristic as part of an investigation.”).

[12] Schmerber v. State of California, 384 U.S. 757, 765 (1966) (holding that police compelling a suspect to submit a blood sample for alcohol content analysis does not violate protections against self-incrimination, in part because the results of the test depend on the chemical characteristics of the blood alone).

[13] U.S. v. Dionisio, 410 U.S. 1, 9 (1973) (holding that precedent supports voice exemplars being physical characteristics and not subject to Fifth Amendment protections); Gilbert v. California, 388 U.S. 263, 266-67 (1967) (“One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection.”).

[14] See generally Holt, 218 U.S. at 245 (holding that a suspect trying on a blouse is not a testimonial).

[15] United States v. Wade, 388 U.S. 218, 222-23 (1967) (finding that being required to speak for identification rather than to speak one’s guilt does not become testimonial because it is done in a lineup).

[16] See In re Search Warrant Application for [redacted text], 279 F.Supp.3d 800, 805 (N.D. Ill. 2017) (holding that the privilege against self-incrimination did not prevent the government from requiring suspects to apply their digits to device fingerprints found during a search).

[17] Barrera, 415 F.Supp.3d at 837 (quoting Hubbell at 43).

[18] See supra note 10 and accompanying text.

[19] Theoretically, if the combination was written on a piece of paper and that paper was being subpoenaed, it would not fall under the Fifth Amendment’s protection as producing the paper would be a physical action. For purposes of having an illustrative example, though, Justice Stevens assumes the combination is within an individual’s head.

[20] See infra note 22.

[21] Riley, 573 U.S. at 393-96 (describing various ways in which cell phones are distinct from items typically found in suspect’s pockets).

[22] Barrera, 415 F.Supp.3d at 842 (“[C]ell phones have taken on a unique status under our Fourth Amendment jurisprudence and are now viewed differently.”).

[23] See supra notes 8, 10 and accompanying text.

[24] See Seo v. State, 148 N.E.3d 952, 957 (In. 2020) (holding that unlocking a phone via passcode is a testimonial and protected by the Fifth Amendment).

[25] See generally Fisher v. United States, 425 U.S. 391, 411 (1976); In re Residence in Oakland, California 354 F.Supp.3d 1010, 1017; State v. Pittman, 479 P.3d 1028, 1048 (Or. 2021); see also Seo, 148 N.E.3d at 955.

[26] See Commonwealth v. Davis, 220 A.3d 534, 548-49 (Pa. 2019).

[27] Seo, 148 N.E.3d at 958. A year later, in Kerner v. State, No. 20A-CR-2377, 2021 WL 4929391 at *6 (Ind. Ct. App. Oct. 22, 2021), the court explained that another factor weighing in favor of Seo was her consistent refusal to provide the passcode to law enforcement, contrasting it with Kerner’s behavior (providing the passcode to law enforcement without objection and only later invoking his Fifth Amendment rights).

[28] Seo, 148 N.E.3d at 959; see also supra note 22.

[29] Seo,148 N.E.3d at 959.

[30] Id. at 960.

[31] Id. at 961.

[32] Id. at 962.

[33] State v. Pittman, 479 P.3d 1028, 1051 (Or. 2021) (“… we have concluded that the trial court did not conduct the necessary factfinding to determine whether the state had established that defendant knew the passcode to the phone and could access it contents, and, therefore, that the second requirement that would have permitted the court to order defendant to unlock the phone was not met.”).

[34] Or. Const. art. I, § 12.

[35] Pittman, 479 P.3d at 1047 (“… once the state has obtained a valid warrant to search a phone, a defendant does not have a legal right to keep the contents of the phone from the state. It is only the testimonial aspects of the act of unlocking the phone, and not the practical result of unlocking the phone, that have constitutional significance under Article I, section 12.”).

[36] Id. at 1051.

[37] Commonwealth v. Jones, 117 N.E.3d. 702 (Mass. 2019).

[38] Id. at 718 (“The defendant’s knowledge of the password is therefore a foregone conclusion and not subject to the protections of the Fifth Amendment and art. 12 [of the Massachusetts Constitution].”).

[39] Davis, 220 A.3d  at 551.

[40] Id.

[41] Id. at 549.

[42] Id.; see also supra note 25 and accompanying text.

[43] “Biometric data” is “a unique, measurable, biological characteristic of trait for . . . verifying the identity of a human being” Colin Soutar et al., Biometric Encryption, in ICSA Guide to Cryptography 649 (1999). In this comment, biometric data will refer to fingerprint or facial data used to unlock devices (referred to as Touch ID and Face ID on Apple devices, respectively).

[44] See infra notes 47-83 and accompanying text.

[45] See infra notes 47-68 and accompanying text.

[46] In re Search Warrant Application for cellular telephone in United States v. Barrera, 415 F.Supp.3d 832, 839 (N.D. Ill. 2019); see also Davis, 220 A.3d at 547 (“As made clear by the Court, where the government compels a physical act, such production is not testimonial, and the privilege is not recognized.”).

[47] Barrera, 415 F.Supp.3d at 839.

[48] Id.; see also supra notes 12-16 and accompanying text.

[49] Id. at 840.

[50] See supra note 17.

[51] Barrera, 415 F.Supp.3d at 840.

[52] Id. at 841.

[53] Id.

[54] In re Search Warrant Application for [redacted text], 279 F.Supp.3d 800 (N.D. Ill. 2017).

[55] Id. at 803.

[56] In re Search Warrant No. 5165, 470 F.Supp.3d 715 (E.D. Ky. 2020).

[57] Id. at 729-30.

[58] In re White Google Pixel 3 XL Cellphone in a Black Incipio Case, 398 F.Supp.3d 785 (D. Idaho 2019).

[59] Id. at 788.

[60] Id. at 794.

[61] Minnesota v. Diamond, 905 N.W.2d 870 (Minn. 2018).

[62] Id. at 875.

[63] Id. at 877 (“The compelled act did not require Diamond to ‘submit to testing in which an effort [was] made to determine his guilt or innocence on the basis of physiological responses, whether willed or not.’”).

[64] Id. at 877-78 (“Whether Diamond’s fingerprint actually unlocked the phone depended on whether the cellphone’s fingerprint-scanner analyzed the physical characteristics of Diamond’s fingerprint and matched the characteristics of the fingerprint programmed to unlock the cellphone.”).

[65] In re Search of [Redacted] Washington, D.C., 317 F.Supp.3d 523 (D.D.C. 2018).

[66] Id. at 540.

[67] Commonwealth of Virginia v. Baust, No. CR14-1439, 2014 WL 10355635, at *1 (Va. Cir. Ct. Oct. 28, 2014).

[68] Baust, 2014 WL 10355635 at *4 (“As reasoned in Kirschner, Defendant cannot be compelled to ‘divulge through his mental processes’ the passcode for entry. The fingerprint, like a key, however, does not require the witness to divulge anything through his mental processes.”).

[69] In re Application for a Search Warrant, 236 F.Supp.3d 1066 (N.D. Ill. Feb. 16, 2017).

[70] Id. at 1073-74.

[71] See supra note 47 and accompanying text.

[72] In re Application for a Search Warrant, 236 F.Supp.3d at 1074.

[73] Id. (“…the modern day cell phone, based in part on the personal and intimate information regularly stored on such devices, is subject to higher Fourth Amendment protections than other items that might be found on a person.”); see also Riley, 573 U.S. at 392 (“The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”).

[74] In re Application for a Search Warrant, 236 F.Supp.3d at 1074.

[75] In re Residence in Oakland, California, 354 F.Supp.3d 1010 (N.D. Cal. Jan. 10, 2019).

[76] Id. at 1017.

[77] Id. at 1015.

[78] In re Residence in Oakland, California, 354 F.Supp.3d at 1016 (“It follows, however, that if a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device.”).

[79] Id.

[80] United States v. Wright, 431 F.Supp. 1175 (D. Nev. 2020)

[81] Id. at 1187.

[82] Id.

[83] Id. at 1188.

[84] See supra notes 47-68 and accompanying text.

[85] See supra notes 69-83 and accompanying text.

[86] See supra Part II.

[87] Id.

[88] Id.

[89] See supra notes 47, 54, 70 and accompanying text.

[90] See supra notes 47, 54 and accompanying text.

[91] Carissa A. Uresk, Compelling Suspects to Unlock Their Phones: Recommendations for Prosecutors and Law Enforcement, 46 B.Y.U. L. Rev. 601, 651 (2020).

[92] The Northern District of California has come the closest to addressing this question by ruling that if biometrics provide access to the same data as a passcode would, they must be considered testimonial. See supra notes 77-78 and accompanying text.

[93] See supra Part II-A-i.

[94] Uresk, supra note 91, at 655.

[95] Id.

[96] See supra note 92.

[97] See supra notes 69-74 and accompanying text.

[98] In re Residence in Oakland, California, 354 F.Supp.3d at 1016.

[99] Id. (“In the instant matter, the Government may obtain any Facebook Messenger communications from Facebook under the Stored Communications Act or warrant based on probable cause. While it may be more expedient to circumvent Facebook, and attempt to gain access by infringing on the Fifth Amendment’s privilege against self-incrimination, it is an abuse of power and is unconstitutional.”). See also infra Part III-B-iii.

[100] Bryan H. Choi, The Privilege Against Cellphone Incrimination, 97 Tex. L. Rev. 73, 77 (2019).

[101] Id.; see also supra notes 69-83 and accompanying text.

[102] See Herrera, supra note 3, at 784-85.

[103] Id. at 785-87.

[104] See id. at 806 (“They [the consumer] can choose either legal protection or increased security, but they cannot have both.”); see also supra Part II-B

[105] Matthew J. Weber, Warning—Weak Password: The Court’s Indecipherable Approach to Encryption and the Fifth Amendment, 2016 U. Ill. J.L. Tech. & Pol’y 455, 471 (“As Dan Riccio, a senior vice president at Apple, explained, ‘Your fingerprint is one of the best passwords in the world, it’s always with you, and no two are exactly alike.’”).

[106] Id.

[107] See supra note 104.

[108] See In re Residence in Oakland, California, 354 F.Supp.3d at 1014. (“The challenge facing the courts is that technology is outpacing the law. In recognition of this reality, the United States Supreme Court recently instructed courts to adopt rules that ‘take account of more sophisticated systems that are already in use or in development.’ Carpenter, 138 S. Ct. at 2218–19 (quoting Kyllo v. United States, 533 U.S. 27, 36 (2001)).

[109] See supra notes 25-26 and accompanying text.

[110] See supra notes 37-38 and accompanying text.

[111] See supra Part I-A.

[112] See e.g. Sandvig v. Barr, 451 F.Supp.3d 73, 88 (D.D.C. 2020) (holding in part that reading a statute in a way that criminalized plaintiff’s behavior would raise First Amendment challenges, and the court should instead opt for a reading that avoiding raising such concerns).

[113] See generally supra Part III-B.

[114] See generally notes 69-83 and accompanying text.

[115] See supra Part III-A-ii.

[116] Id.

[117] See supra Part I-A; infra Part III-B-iii.

[118] See supra notes 33-36 and accompanying text.

[119] See supra note 99 and accompanying text.

[120] See Smith v. Maryland. 442 U.S. 735, 743-44 (1979) (“This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”).

[121] See supra note 98 and accompanying text.

[122] Id.

[123] See supra note 119.

[124] See supra note 31 and accompanying text.

[125] See Carpenter v. United States, 138 S. Ct. 2206, 2218 (analogizing a cell phone to “a feature of human anatomy” as part of the justification for why the third-party doctrine is inapplicable to cell-site location information).

[126] See supra note 9 and accompanying text.

[127] See supra Part II.

[128] See supra Part III-B.