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With the highly anticipated release of Apple’s new iPhone comes an unexpected constitutional law question.
Apple’s iPhone 5 allows users to unlock the phone with their fingerprints. Many commentators have been quick to point out the economic and scientific implications of this new technology, but Attorney Marcia Hofmann pointed out that there are equally noteworthy legal effects of moving from PINs or passwords to fingerprints.
Hofmann suggests that biometric authentication may create problems under the Fifth Amendment, which provides that “no person shall be compelled in any criminal case to be a witness against himself.” While this protection applies to memory-based passwords and PINs, which are stored in an individual’s memory, it is possible that the rules will be different for biometric authentication because fingerprints are simply biological.
This distinction between what an individual “knows” (which can qualify as protected “testimonial” disclosures) and what an individual biologically “is” may turn out to be critical. Under United States v. Hubbell, 530 U.S. 27 (2000), the Fifth Amendment prevents judges from forcing individuals to disclose self-incriminating information (such as a password or PIN), but courts have held that it does not prevent the government from collecting biological data such as fingerprints, DNA samples, and voice samples.
Hoffman suggests that the easiest fix would be to give users the option to require both fingerprint authentication and a PIN or password. Since the latter would fall within the currently protected category of something the individual knows. Of course, while this may better protect private information, it also precludes easily unlocking your phone with the tap of a finger.
What do you think? Should biometric authentication be afforded the same protections currently enjoyed by PINs and passwords? How can users protect themselves while still enjoying the benefits of biometric authentication?
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