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New iPhone may weaken Fifth Amendment

Evolving technologies, such as the iPhone, have posed challenges to mounting a Michigan criminal defense and assuring that accused criminals are afforded constitutional protections. Apple's introduction of its new $999 iPhone X smartphone has presented new personal security issues because of its face recognition technology.

Users can unlock their phone by looking at the device, instead of entering a code or a thumbprint. An attorney with the American Civil Liberties Union argued that police could use a suspect's face, despite their objection, to unlock their phone and gain access to its contents without violating that person's right against self-incrimination under the Fifth Amendment.

Providing a password was considered speech or providing testimony. The Fifth Amendment allowed suspects to refuse to give passwords to their devices to police. Since 2014, however, courts ruled that the police can compel suspects to use their thumbprints to unlock their iPhones. Using a thumbprint is not the same as communicating testimony to law enforcement.

Courts may accordingly rule that providing facial recognition does not violate constitutional privileges against self-incrimination. Faces could be considered as the same biometric category as thumbprints. This may be categorized more as identification, instead of constitutionally-protected testimony.

The most effective way to block facial recognition is for the user to keep their eyes closed when someone is pointing the device directly at them. It is unclear whether police would have to seek a warrant to compel the owner of the device to move their body or their head so that the scanner is in the right placement. A warrant is required if police want to force a person to be anywhere or to take things off their body.

Apple introduced a possible remedy to unwanted thumbprint searches. It developed a SOS mode that could temporarily stop thumbprint recognition and force the phone's user to type their password when a side button is rapidly pressed five times. However, this does not prevent a sudden and unexpected police search.

Disabling the facial recognition feature is the most effective means of assuring privacy. The ACLU recommended a four-digit code which restricts guesses to 10. An attorney can assist defendants when police seek evidence. An experienced lawyer can help assure that constitutional rights are preserved in these searches.

Source: The Daily Beast, "Cops could force open your iPhone X using FaceID, ACLU warns," Ben Collins, Sept. 13, 2017

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