New iPhone Could Raise Constitutional Issues

Sometimes technology moves so fast that the law does not have time to catch up to it. Judges and courts end up dealing with novel issues that they did not anticipate. Sometimes new technologies come about and we can see the potential legal issues that may arise far in advance. Such is the case with the newly released iPhone X.

Facial Recognition Technology
The new iPhone X will have a unique facial recognition technology, where the phone recognizes its own owner’s face. The phone unlocks when it is held in front of the user’s face. But many privacy experts and civil liberties organizations have concern about how this kind of technology may be used by law enforcement at the scene of a potential crime.

The concern is that normally, with a password, the police must compel you to input your password in order to unlock the phone and gain access to its contents. The police having physical possession of your phone is useless without inputting the password to get to its contents.

There is case law that says that compelling you to put in a password or code is akin to a search and seizure, and thus, police must have probable cause to make you unlock your phone this way. Additionally, forcing someone to unlock a phone by password has been interpreted to be a violation of one’s right against self-incrimination.

Facial recognition technology is different. The user is not inputting anything, and the police do not have to force you to do anything. All they have to do is hold the phone to your face. Now, simply having the phone in their possession is potentially enough for the police to have the phone unlock.

Constitutional Analysis may be Difficult

How a phone unlocks is vital to a constitutional analysis. For example, one court has said that although police can not compel people to input a password, they could compel them to put their finger on a fingerprint sensor, which unlocks the phone. The logic is that doing so is not “testimonial.” That is, the police are not ordering you to actually say anything, only to put your finger down somewhere, and thus, the fifth amendment is inapplicable.

Courts believe that is the same as compelling a fingerprint or giving a hair sample or participating in a police lineup.

If courts have ruled that way with fingerprint scanners unlocking phones it is likely they would rule the same way with facial recognition. There could be no constitutional impediment to police just telling you to look at your phone or even holding the phone up to your face before you even realize what they are doing.

The U.S. Supreme Court has not made any rulings on fingerprint or facial scanning technology. The Court has already recognized the privacy that citizens have over information in their cell phones. But that does not mean that they could not say that police have a right to simply hold your phone in front of your face (or possibly even up to your face when you are unconscious or inebriated).

Make sure your constitutional rights are not violated if you are arrested or charged with a crime. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your case if you are arrested in Maryland.