“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?
