Face ID and the Fifth Amendment: Can Cops Make You Open the New iPhone?

Let’s examine the thorny legal issues created by Face ID

One of the new features of the upcoming Apple X is “Face ID” that will let you open the phone just by looking at it. The only problem? Other people could also make you open the phone by looking at it.

The age of smartphones has led to complicated legal debates about when police are allowed to search your phone. In early 2016, the FBI and Apple fought over whether Apple should help the agency access the cell phone of one of the San Bernardino killers. Apple argued that it didn’t want to create a precedent — but the FBI eventually found a way to hack into the phone without Apple’s help.

Skeptics of Face ID have called it everything from “just plain creepy” to a “privacy disaster.” But it could be a godsend for the next FBI agent trying to get into a suspect’s phone: The agent could, theoretically, hold the phone up to the face of its living or even dead owner.

Privacy experts say that scenario should never be allowed to happen. Electronic Freedom Foundation staff attorney Sophia Cope told TheWrap there’s no question what police need to do if they want to access someone’s phone:

“They need a warrant,” she said.

Cope said that police are required to get a warrant to avoid violating the  Fourth Amendment protection against unreasonable government searches and seizures.


But the law is unclear. A Virginia court ruled in 2014 that police can, when backed by a court order, force suspects to put their thumbs on their cell phones to open them. But the court said that compelling suspects to punch in a password or share one with police would violate the Fifth Amendment right against self-incrimination.

The Minnesota Court of Appeals has also held that “forcing a person to place a particular finger on a phone does not trigger the Fifth Amendment because it is not testimonial,” George Washington University law professor Orin Kerr wrote recently in the Washington Post.

Because some courts have already ruled that people can be ordered by a court to to unlock their phones with their thumbprints, courts might also order people to open their smart phones by looking at them, ACLU staff attorney Brett Kaufmann told TheWrap.

Kaufman said he doesn’t “have a real strong reaction” to face recognition technology because courts are already ruling that compelling suspects to us their thumbprint readers to open their phones does not violate the Fifth Amendment.

The Supreme Court has not yet ruled on whether forcing suspects to type in a password or use a thumbprint to unlock a phone is akin to forcing them to testify against themselves and triggering their right to “take the Fifth” and refuse to unlock the phone.

In the Minnesota case, the court ruled that requiring a suspect to press his thumb to his phone did not “disclose any knowledge he might have or to speak his guilt, and was “no more testimonial than furnishing a blood sample, providing handwriting or voice examplars, standing in a lineup, or wearing particular clothing.”

The same issue was raised in Los Angeles when federal authorities obtained a search warrant requiring people present during a court-ordered search to press their fingers and thumbs on their phones to unlock them.

“A lot of people have wondered: Is that legal? I don’t think there’s an easy answer to that,” Kerr wrote.

Civil libertarians are encouraged by the Supreme Court’s understanding  the modern danger of allowing police free reign to snoop in cell phones. The court “is getting increasingly aware of the new technology,” Kaufman said. “A cell phone is like hauling around an entire storage facility of your personal information in your pocket.”

Supreme Court Chief Justice John Roberts said in his opinion in Riley: “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”

But depending on future court rulings, those privacies could soon become as plain as the look on your face.