Your Rights Won’t Protect You From The Police Unlocking Your Phone With Face Recognition

If they want to police can use your face to unlock your phone.

For the first time ever, there has now been a police report of officers forcing a suspect to unlock their iPhone X using facial recognition technology. On Aug. 10, FBI investigators used a search warrant served on 28-year-old Grant Michalski of Columbus, Ohio. Michalski was later arrested on child pornography charges, but what helped officers arrest him was the search warrant that allowed them to go through the man’s phone.

In the end, the police were unable to get much use out of the phone. Officials ultimately had to manually open the device to get the evidence they needed. The face recognition prohibited police from being able to efficiently search through Michalski’s phone, as they would need his face in order to unlock it every time. The Fifth Amendment of the Constitution protects his right to refuse their entry.⠀⠀⠀⠀⠀⠀⠀⠀⠀

“Law enforcement can’t get a warrant to bypass the Fifth Amendment’s right against self-incrimination,” Clare Garvie, a fellow with Georgetown Law’s Center on Privacy and Technology, tells Rolling Stone. “Historically, passcodes cannot be compelled because in disclosing the information, the defendant would be acting as a witness against themselves.”

In 2014, the Supreme Court ruled in Riley v. California that phones with biometric locks are protected against unreasonable search under the Fourth Amendment, according to the Rolling Stone. In order for police to search your biometric lock-protected phone, they’d have to have a warrant. The Fifth Amendment does not recognize releasing your fingerprints and face prints as a violation. Passcodes are seen as “testimonial,” and fingerprints and aces are thought to be identifying which omits them from the safety of the Fifth Amendment.