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The US District Court for the Northern District of California recently denied a search warrant referring to a mobile device protected by a facial recognition system. In its decision, the court considered that forcing the owner of the device to unlock it via the facial recognition system constitutes a breach of the right not to be a witness against oneself established in the Fifth Amendment of the US Constitution.

Until then, according to the precedent established in Fisher v. United States 425 US 391 (1976), the Fifth Amendment protected users from communicating information that could incriminate them, known as testimonial information, which could include the entry of passcodes or PIN numbers to unlock electronic devices. However, biometric information, such as fingerprints and facial features, does not constitute knowledge that is acquired but rather intrinsic to the party investigated. Therefore, it could be considered “non-testimonial” information. Examples of biometric information that are not protected by the Fifth Amendment, despite their potentially incriminatory nature according to US case law, include the obligation to stand in a line-up, to supply a blood sample and to submit to fingerprinting (Doe v. United States, 487 US 201, 1988). Accordingly, there was uncertainty regarding the legal status of biometric information under the Fifth Amendment in relation to unlocking of devices.

Experts had already pointed out that “when you put your fingerprint on the phone, you’re actually communicating something,” and that such communication should therefore be protected under the Fifth Amendment in the same manner as a passcode. After referring to the reasoning of the U.S. Supreme Court in Carpenter v. United States 585 US ____ (2018), the Californian court stated in its decision that “Courts have an obligation to safeguard constitutional rights and cannot permit those rights to be diminished merely due to the advancement of technology.” Accordingly, it ruled that the use of biometric features to unlock a device should be considered equivalent to the entry of a passcode, given that it has the same function. According to the court, this teleological difference distinguishes the level of protection granted to facial and fingerprint recognition for unlocking devices with respect to that granted to the same type of information when used for a non-testimonial purpose.

This matter is likely to be the object of further interpretation and many subsequent decisions, particularly considering that it is a new issue. Regardless, the judgment of the Californian court reflects the growing need to establish interpretive criteria and the difficult balance between public and private interests in investigations with technological implications.

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