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by SoftwareMaven
4283 days ago
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If you have the ability to lawyer it enough, I think you'd have a few layers of court required to sort out whether this is allowed (assuming they don't have proof you have something on the phone). You are basically forcing self-incrimination, a violation of the Fifth Amendment. I totally agree that, if you are really concerned about this, fingerprint is a bad idea, but the legal ramifications are interesting. Not quite relatedly, does anybody know if there is a heat sensor? Or can I just cut somebody's finger off to use it? (We are obviously well outside of judicial channels here! :) |
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Evidence is not covered by the Fifth Amendment. If you have papers that would incriminate you, and a warrant is issued for those papers, you cannot refuse to surrender them. If you destroy them having received the warrant, you'll be prosecuted for obstructing justice.
Orin Kerr's interpretation[1] is that a phone is evidence, and contains evidence in the form of digital data. The only need for testimony is to establish that the phone is actually yours. You can't be forced to admit "yes that is my phone." But if the fact that it is your phone can be established in other ways (say, with the testimony of your wireless provider), then you can be forced to unlock it.
You can't be beaten or tortured until you type it in, of course, at least within the U.S. But you can be jailed for contempt of court for your refusal. And the limits of contempt imprisonment seem to be pretty murky.
[1] http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014...
Edit: to clarify the source of my argument