In her recent article on Slate, Josephine Wolff slams Judge Kandis Westmore’s ruling that, in part, gives Fifth Amendment protection for biometrics (like fingerprints or facial recognition) when used as a password for cell phones.
Westmore’s ruling does appear to break new legal ground and I don’t know if it will hold up (assuming it’s appealed) or if other judges will issue similar rulings. However, to claim that Westmore doesn’t understand the Fifth Amendment goes a little too far.
In her ruling, Westmore takes take the admonition from Kyllo and Carpenter seriously, that courts “must take account of more sophisticated systems that are already in use or in development.”
As others have suggested, Carpenter may significantly change how US courts view technology. See Paul Ohm’s argument that Carpenter (almost) rids us of the third-party doctrine (to which I say good riddance).
Wolff compares a cell phone to a safe, a metaphor I’ve seen used other places. As she rightly states, the Fifth Amendment prevents the government from compelling you to tell them the combination to the safe, but they can still use “jackhammers, drills, and explosives” to break into it.
But that’s not the right metaphor. The argument isn’t that the government can’t crack your cell phone. They can use whatever tools at their disposal to unlock the phone themselves.
But just like they can’t force you to unlock the safe yourself (either by telling them the combination or forcing you to do it yourself), they can’t force you unlock your cell phone. Current law makes the distinction between compelling you to type in your password and placing your finger on the phone. Westmore says that distinction doesn’t makes sense, given the advances in technology.
I think that’s the right call. More importantly, it’s logical extension of Carpenter and to simply dismiss it as an error in understanding the Fifth Amendment drastically understates Carpenter’s importance and does an injustice to Westmore’s ruling.