Biometric Passwords and the Fifth Amendment: How Technology Has Outgrown the Right to Be Free From Self-Incrimination

Abstract

Society is transitioning into a new era within the realm of passwords. The growing dependence
on smartphones has led consumers to store extremely sensitive information on their passwordprotected phones. Technology companies have made these smartphones more attractive and secure
by allowing users to password protect their phones using their physical features, or “biometric
passwords.” However, users who adopt such passwords are waiving their right to assert certain
constitutional rights. An individual cannot “plead the Fifth” if asked to unlock a smartphone using
a physical feature. On the other hand, an individual who possesses the same smartphone, but uses
a nonbiometric password, can successfully “plead the Fifth” and refuse to disclose the password.
This Comment explores this legal issue and sets forth a proposal on how courts can extend the Fifth
Amendment privilege against self-incrimination to biometric passwords. This proposal calls for a
new legal test in determining what merits Fifth Amendment protection, taking into consideration
the fact that communication today is not the same as communication when the Supreme Court
first set out its test for Fifth Amendment protection. This Comment then applies the proposal to
the iPhone X, since the phone’s facial recognition technology is a model of the growth of biometric
passwords.

Herrera-online
By uclalaw