“Steal your face right off your head”: The Fifth Amendment and iPhone X Facial Recognition

By Dylan Erwin

If you have an iPhone, you know all too well about the Fall Lull. The Fall Lull is the phrase I’ve started using to describe the way in which my old iPhone slows down, and becomes almost inoperable after the fall announcement and release of the new round of iPhones. By my estimation, the Fall Lull is most directly caused by updates. Your iPhone is slow because the App developers roll out tech upgrades to comply with the new iOS. So, you update your iOS only to realize your phone is too old to handle it. So, your iPhone is still slow. If Sisyphus were around in the 21st century, he wouldn’t be pushing a boulder up a hill; he’d be constantly updating his iOS and Apps, only to have his iPhone crash over and over again. Regardless, if you’re anything like me, you welcome the Fall Lull, because with the Fall Lull come rumors and announcements – rumors that you spend the entire summer researching, and announcements you eagerly anticipate even more than President Trump’s tweets.

Man oh man, how about that iPhone X?! First of all, that price tag? $999?! A little much, but totally worth it, right? No headphone jack? Hey, that’s okay, I’m used to it. Facial recognition technology to unlock your phone?!?! That’s…wait… facial recognition? I think we need to spend some time on this one.

As an attorney, I’m programmed to overthink. So much so that whenever someone accuses me of overthinking, I assume it’s a compliment. As such, my final decision on iPhone X or iPhone 8 remains up in the air. A lot of my hesitations about the iPhone X evolved into full-fledged paranoia after reading an article entitled “Can Cops Force You to Unlock Your Phone With Your Face?” published in last month’s issue of The Atlantic. For those of you who don’t know, the iPhone X “learns to recognize its owner, using a 3-D map made up of more than 30,000 infrared dots projected onto a person’s face”, author Kaveh Waddell writes, and “[t]he map can’t be fooled by photos or masks”.[1] Does this freak you out? It kind of freaks me out. Let’s add another layer – could facial recognition make it easier for the police to gain access to the contents of your phone? For purposes of this blog, I am only focusing on the Fifth Amendment protection against self-incrimination, and not the Fourth Amendment protection against unreasonable searches and seizures.

Before we dive into facial recognition, let’s go back and see what the law says about fingerprint scanning. In several of the cases tried since the tech roll-out in 2014, the courts were asked the question “can the police force someone to scan their thumbprint to unlock their phone?” The answer was a resounding and unanimous “maybe”. As Waddell states in his article, “[t]he Fifth Amendment protects people from having to give up information that could incriminate them, like a password or PIN code. But a thumbprint isn’t something you know, which would be protected by the Constitution; it’s something you are. Like DNA or your handwriting, physical attributes are usually considered outside the boundaries of Fifth Amendment protections”.[2] For a recent decision regarding fingerprint scan technology and its applicability to the law, I encourage you to review the discussion in the February 16, 2017 decision out of the United States District Court for the Northern District of Illinois in In re Application for a Search Warrant, 2017 WL 758218, 236 F.Supp.3d 1066 (N.D. Ill. 2017).

Although I respect the courts’ ruling in these cases, it cannot be stressed enough that many of these decisions are decided on a case-by-case basis. As such, I tend to side with the legal scholars on this one; many of whom “disagree with the idea that the government should be able to use a search warrant to force people to unlock their phones secured with biometric authentication”.[3] Although biometric data may seem outside the scope of Fifth Amendment protections, that might not be the case. Prior to the September 2017 article, The Atlantic published another one of Waddell’s tech pieces entitled “Will the Constitution Protect Your Next Smartphone”. In this June 2016 article, Waddell recounts a discussion with Albert Gidari, director of privacy at Stanford University’s Center for Internet and Society: “[t]he Supreme Court has determined that the Fifth Amendment applies only to ‘testimonial communication that is incriminating.’ Gidari says that even though a fingerprint on its own isn’t covered by the Fifth Amendment, the act of unlocking a device with a fingerprint falls into the special protected category”.[4] Gidari states that the act of placing your fingerprint on the phone is a communication. It’s a communication between you and your phone, in which you’re saying, “Hi, it’s me. Please open up.”

This doesn’t seem like that big of a deal if you have nothing to hide. But let’s go deeper – by unlocking your phone, you aren’t simply saying “it’s me”, it could also be argued that you’re saying “All the contents of this phone belong to me. I’m the guy who saved all these pictures and videos. I’m even the guy who took some of these pictures and videos.” All of a sudden, although the Fifth Amendment protects you from testifying and making self-incriminating statements in your bank robbery trial, it wouldn’t protect the fingerprint scan that unlocked the iPhone wherein you saved a selfie you took during the bank robbery with the caption “I can’t believe I, Dylan Erwin, am actually robbing this bank! #badboy”. As law professors love to say, it’s a slippery slope. The harsh reality is that sometimes people have to get muddy before they realize how slippery the slope actually is.

So now let’s go back to facial recognition. Since this is still new technology, the issue hasn’t been litigated yet. As such, attorneys can only speculate as to what the courts will do when this issue comes up. Generally, it would seem like the courts may not be too keen to afford Fifth Amendment protections to this new technology. What do you think? Does this sway your decision to shell out the $999 for an iPhone X, or does this help you finally realize you want to go off the grid and live in a small WiFi-less cabin in the Blue Ridge Mountains?


[1] Waddell, Kaveh. “Can Cops Force You to Unlock Your Phone With Your Face?” The Atlantic, September 13, 2017. https://www.theatlantic.com/technology/archive/2017/09/can-cops-force-you-to-unlock-your-phone-with-your-face/539694/

[2] Id.

[3] Id.

[4] Waddell, Kaveh. “Will the Constitution Protect Your Next Smartphone?” The Atlantic, June 3, 2016. https://www.theatlantic.com/technology/archive/2016/06/will-the-constitution-protect-your-next-smartphone/485408/

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