A state court did not violate a man’s Fifth Amendment rights when it compelled him to provide his fingerprint to unlock his smartphone, the Minnesota Court of Appeals ruled Tuesday.
The court of appeals affirmed a Carver County District Court decision against Matthew Vaughn Diamond, who had been convicted of theft, burglary and criminal damage to property. Diamond argued that being asked which fingerprint would open the phone and then providing that fingerprint was “a testimonial communication,” which violated his right to avoid self-incrimination.
However, the court of appeals said that providing a fingerprint “is no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing.”
The U.S. Department of Justice affirms that the taking of fingerprints does not fall “within the category of either communication or testimony,” so it does not qualify as self-incrimination. However, there is no mention of whether using a fingerprint as a password falls under this category.
The question remains of whether using a fingerprint to open a phone that contains incriminating information is unconstitutional. In the case in Minnesota, Diamond initially refused to provide his fingerprint, even after a court order stated that doing so was not against his Fifth Amendment rights. It was only after he was told that “compliance with the order would remedy” being held in civil contempt in court that he complied with the court order, despite the exchange seeming quite a bit like bribery.
Diamond was sentenced to 51 months in prison, an outcome no doubt assisted by the evidence obtained from his phone.
In several state court cases over the past few years, the same question was brought to light. In a Virginia 2014 case, the court ruled that the plaintiff must provide his fingerprint to unlock his phone. In 2012, a Colorado court ruled that if it is a “foregone conclusion” that the information is incriminating, then “no constitutional rights are touched.”
Attorney and special counsel to digital rights group Electronic Frontier Foundation Marcia Hofmann argues that, “The privilege against self-incrimination is an important check on the government’s ability to collect evidence directly from a witness,” meaning that if you are “forced to divulge something” that you know is self-incriminating, it should be unconstitutional, regardless of whether it is a numerical or fingerprint password.
Although the Fifth Amendment protects providing numeric passwords, the issue of whether a fingerprint is equivalent to a numeric password is still undecided nationwide. Last year, the FBI tried to force Apple to open the San Bernardino shooter’s locked iPhone.
One argument that obtaining fingerprints to unlock a phone is not protected by the Fifth Amendment is that a fingerprint is “like a key,” and “does not require the witness to divulge anything through his mental processes,” according to the Virginia Circuit Court. In other words, because your fingerprint is not stored in your mind like a password, being told to “put your finger here,” to unlock a phone does not qualify as testifying or self-incriminating.