By Joe Levi | October 11, 2013 1:58 PM
In these United States we are protected by the Bill of Rights. These Rights guarantee freedoms of speech, assembly, religion, press, and more. There are, however, two Rights which you might be sacrificing, at least somewhat, if you use your fingerprint to unlock your phone.
First of all, I’m not inferring that any of our readers or editors might run into problems with the law — except Michael Fisher, that guy just looks like “trouble” — however, even I have been pulled over for one thing or another. All it takes is one case of mistaken identity or being in the wrong place at the wrong time and an otherwise innocent person can run afoul of the law.
An overzealous law enforcement officer or prosecutor might go fishing to try and find something with which to hang you charge you that they found while searching your phone… or they might delete video or images which could used to prove your innocence — or their guilt.
The Bill of Rights
The Pocketnow audience covers much more than just these United States, so as a quick refresher, here are the parts of the Bill of Rights to which I’m referring. You may have similar Rights or protections in your country, so don’t think this is just an American thing.
Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated … .
Let’s sum that up. You have the Right to be secure in your effects (which includes your smartphone and tablet) against “unreasonable searches”. Based on a literal interpretation of the law, no one can compel you to hand over your phone unless it’s “reasonable” for them to do so. Unless you are arrested or the law enforcement officer has a warrant that specifically identifies your phone is to be searched and/or seized, your phone is protected as “effects” under the Fourth Amendment.
Unfortunately, not all law enforcement officers or attorneys interpret the Fourth Amendment in this manner. That’s where the Fifth Amendment comes into play.
Fifth Amendment: No person shall … be compelled in any criminal case to be a witness against himself … .
Under the protection guaranteed by this Amendment, you cannot be compelled to testify against yourself in any criminal case. You’ve heard of “pleading the Fifth”? How about your Miranda Right to remain silent? This is where both of those come from.
In the past, courts have interpreted this to mean that defendants don’t have to give up their passwords, pins, or unlock patterns. Of course that doesn’t stop them from attempting to hack into your device, which they will, given enough time.
Legal implications of fingerprint locking your phone
Apple has just brought fingerprint unlocking into the mainstream. Many people have voiced privacy concerns about how this is implemented and how they don’t want security agencies like the NSA to have access to all this fingerprint data. Apple assures us this information is stored securely, on the device, not in the cloud where it could be hacked or subpoenaed en masse. That’s not the kind of security issue we’re talking about here.
Whereas a court cannot compel you to divulge your password, which could provide the key to the information that might somehow incriminate you, they could physically force you to place your finger on a fingerprint reader. When they book you, they already force you to submit your fingerprints. You can refuse to provide them, but if you do they’ll simply force you to do it anyway. What’s the difference here?
All that protection you thought you had is no longer there because you used your fingerprint to secure your device, instead of a strong password.
More than just fingers
Using any kind of physical key to unlock your smartphone or tablet is subject to the same treatment. If you have an Android and use Face Unlock, it only takes someone holding your phone up to your face (whether you’re willing or not) to unlock it. If you’re using an NFC token to unlock, it’s even less secure, since the court could consider this to be a “key”.
The only real way to keep the data on your phone secure is to use a strong password to unlock it. Sure, its inconvenient, but the others, although they may make you feel more secure, are putting you at risk.
So, just in case there might some something (ANYTHING) on your phone that you wouldn’t want a prosecutor to use against you in front of a jury of your peers, make sure you have a strong password securing your device.
Then again, you could just always obey the law.
Image Credit: (CC) Open Walls