A recent ruling by a circuit judge in Virginia could have long casting implications for security features such as Touch ID and other fingerprint protected devices.
According to the Judge, Judge Steven C. Fucci, whilst passwords (and hence password protected devices) are protected under the Fifth Amendment, fingerprints are not.
This means that a police officer can make a criminal defendent give up your fingerprint in order to unlock a device. Uh Oh.
The Fifth Amendment states that “no person shall be compelled in any criminal case to be a witness against himself.” This protects memorized information and knowledge such as passwords and passcodes, but it DOES NOT extend to fingerprints in the eyes of the law, because, as the judge ruled, giving up a fingerprint is just like providing a DNA or handwriting sample or an actual key, which the law permits.
The case that the judge was ruling on was against a David Baust who is accused of strangling his girlfriend to death. The cops believe that he has video of the crime recorded on his phone. prosecutors are obviously trying to get access to that video and were trying to get the judge to force the defendant (Baust) to unlock it.
Here’s the thing, however: If the phone in question is an iPhone with Touch ID, it is probably passcode locked at this point and, hence, protected by the fifth Amendment. Touch ID requires a passcode after 48 hours of disuse, a restart, or three failed fingerprint entry attempts and it’s pretty unlikely that Baust has had his phone in prison.
Unless the judge’s finding gets overturned, it does seem like this ruling might have some pretty big ramifications for fingerprint protected technology and privacy versus security in the future.