Last year, the FBI received a warrant allowing it to use a January 6 defendant’s fingerprint to unlock his phone. In a similar case, a federal judge ordered a January 6 defendant to “unlock his laptop using facial recognition.” More recently, the FBI was allowed to compel a defendant to unlock his Wickr account using facial recognition, marking the first time a compelled biometric was used to unlock an encrypted account.
While these courts have allowed compelled biometric decryption, other courts have found such compulsion to be a violation of the Fifth Amendment. The Supreme Court will likely address this issue in the future, but in the meantime there is no definitive answer on whether compelled biometric decryption is constitutional.
A core function of the Fifth Amendment is to protect against self-incrimination. The Supreme Court has held that three elements must be met for the self-incrimination clause of the Fifth Amendment to apply: compulsion, incrimination, and testimony. Forcing a defendant to unlock a device using biometric data certainly involves compulsion and can be incriminating. Thus, courts generally focus on whether the production of biometrics is testimonial.
To be testimonial under the Fifth Amendment, a communication or act “must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Historically, only communications were held to be testimonial. However, in Fisher v. United States, the Supreme Court held that an act can also be testimonial.
At the heart of Fisher was the government’s request to compel the production of tax documents. In that case, a defendant asserted the privilege against self-incrimination and refused to produce the subpoenaed documents. At that time, a refusal to produce documents on Fifth Amendment grounds had never been successful because producing documents is an act, not a communication, and thus non-testimonial. However, the Court in Fisher held that producing subpoenaed documents is testimonial “where the act of producing them is incriminating in itself,” regardless of how incriminating the contents of the documents might be. This precedent, that an act can be testimonial and thus self-incriminating, became known as the Act of Production Doctrine.
The Act of Production Doctrine was further defined in two later Supreme Court cases, both of which involved the compelled production of documents. The first case, Doe v. United States, established that the Fifth Amendment protects “the contents of an individual’s mind” from compelled disclosures. The second case, Hubbell v. United States, built on Doe’s contents of the mind framework. The Hubbell opinion stated, “The assembly of those documents was like telling an inquisitor the combination to a wall safe [testimonial], not like being forced to surrender the key to a strongbox [non-testimonial].”
In other words, if the production divulges “the contents of an individual’s mind,” such as providing a password, then it is testimonial in nature and protected by the Fifth Amendment. However, if the act does not divulge “the contents of an individual’s mind,” such as handing over the key to a strongbox, then it is non-testimonial and not protected.
When applying this framework to the compulsion of passwords, courts generally hold that the act of providing a password is a testimonial because it divulges “the contents of [the suspect’s] mind,” much like the act of disclosing the combination to a safe. However, the compulsion of a biometric is more complex because it involves something that the production of documents or a password does not: a physical trait.
Generally, when the source of the evidence is a person’s body, the production of that physical trait is non-testimonial. For example, “the Supreme Court has held the Fifth Amendment does not bar the government from compelling a person to wear a particular piece of clothing; furnish a blood sample; provide a handwriting exemplar or a voice exemplar; or stand in a lineup.”
However, the Court has been careful to note that this precedent is not a blanket rule that will apply to all evidence that is derived from a physical trait. In Schmerber v. California, when ruling that the compelled production of a blood sample was non-testimonial, the Court distinguished in dicta the blood test at hand from other tests that could elicit “essentially testimonial” responses, such as a lie detector test.
In cases of compelled biometric decryption, the item being compelled is a means of decryption like a password, but it is also derived from a physical trait like a blood test. Consequently, these cases create a tension between the Act of Production Doctrine, which states that acts of compelled production can be testimonial, and the precedent that evidence is non-testimonial when its source is a physical trait. This tension, paired with a lack of guidance from the Supreme Court, has created a jurisdictional split on whether compelled biometric decryption is constitutional.
The courts that find compelled biometric decryption constitutional analogize it with the non-testimonial act of providing a physical trait. These courts reason that providing a biometric does not divulge “the contents of an individual’s mind,” and thus is more akin to the non-testimonial act of providing a physical key.
Other courts disagree with this analysis. These courts distinguish the production of a biometric from the production of a physical-trait, reasoning that a biometric in this context is no different than a password. In reaching this conclusion, these courts maintain that compelled biometric decryption has a communicated aspect because it testifies to the suspect’s ownership and control over the device and its contents.
Undoubtedly, law enforcement agencies will continue to try and compel suspects to produce their biometric data to unlock their devices and accounts. The question is whether the Supreme Court will find this practice to be constitutional or a violation of the Fifth Amendment.
Christian Harrison is a second-year student at Wake Forest University School of Law who recently joined the editorial staff of the Journal of Business and Intellectual Property Law. Prior to law school, he earned his bachelor’s degree from Elon University. Upon graduation, Christian plans to move to Charlotte and practice civil litigation.
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