Face It – The Convenience of a Biometric Password May Mean Forfeiting Your Fifth Amendment Rights

The shift toward enhanced data security has led to biometric encryption of personal devices through technology like Apple’s FaceID and TouchID. The inalterable nature of biometric passwords allows for enhanced security and increased user convenience. However, law enforcement’s targeting of biometric passwords as an investigatory tool has raised novel constitutional questions.

The Fifth Amendment privilege against self-incrimination prohibits the government from compelling incriminating testimony from an individual. As a result, law enforcement cannot coerce someone to speak the words or letters that decrypt, or unlock, his or her personal device. Yet, the majority of courts do not recognize the same constitutional protection for biometric passwords, raising the issue of compelled biometric decryption.

In addition to addressing how legislatures are reacting to technological advancements, this Comment analyzes the inception and evolution of the Fifth Amendment privilege against self-incrimination and highlights the inherent privacy concerns raised by compelled biometric decryption. In doing so, this Comment seeks to reconcile the Fifth Amendment privilege against self-incrimination with the digital age.

This Comment argues that, today, the information on a personal device is an extension of the mind, almost functioning as an external hard drive of the self. As such, biometric passwords should not become a loophole for the government’s inability to compel an alphanumeric password. To protect personal privacy, this Comment ultimately recommends that courts give deference to the public policy concerns implicated when the government forces private citizens to decrypt their personal devices using a unique biometric password.