In the United States a Circuit Court last week ruled that a defendant in a criminal case can be compelled to provide his fingerprints but not the access code to his mobile phone.

Judge Steven C. Frucci of the 2nd Judicial District of Virginia, in a case against David Baust who is accused of trying to strangle his girlfriend, held that providing the police with a fingerprint is akin to providing a DNA or handwriting sample both of which can be legally compelled. A code however requires the defendant to divulge knowledge which in these circumstances is protected under the Fifth Amendment to the US Constitution. The Fifth Amendment protects against self-incrimination.

Investigators wanted access to Baust’s phone because video equipment was found in his bedroom and they think the phone may contain video footage of the attack. The prosecution applied to the court to require Baust to provide the access code to his phone. Baust’s attorney argued that while it was clear that his client could be required to provide his fingerprints, a passcode is different because it is something the defendant knew, and the Court accepted that argument. The prosecution is reportedly considering whether to appeal.

This decision comes after a ruling by the US Supreme Court in June 2014, that police must obtain a warrant before searching a person’s cell phone data, even at the time of arrest. In Riley v. California and United States v. Wurie the court considered whether a search of cell phone data without a warrant violated a person’s Fourth Amendment rights. However, although the court held that while the police may not search the cell phone data, they can search the cell phone itself to ensure that it cannot be used as a weapon. Justice Samuel Alito concurred but noted that he was not convinced that the rule on searches incident to arrest is based on the need to protect the safety of the arresting officers and the need to prevent the destruction of evidence.

This case, and especially the ruling by Judge Frucci last week, calls to mind the dissenting judgment of Justice John Paul Stevens in 1988 which has since been referenced by the Supreme Court a number of times. In that opinion, Justice Stevens stated that:

“A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe—by word or deed.”

This view has since been accepted by the Supreme Court and it is now established that a person cannot be compelled to reveal the contents of his/her mind. While police can force a person to open their safe with a key for example, they cannot compel a person to disclose a memorized code to the safe.

What does this mean for the latest technological developments? Well, Smartphone encryption methods like Apple’s Touch ID which uses a fingerprint to unlock the phone may not be as secure as thought! [PeepBeep]

Clare Sullivan