Blog: More On Apple's Touch ID – Getting Under Our Skin and Around the Law

by Laura Bedson, Associate Staff

Consumers will stop at nothing to get their hands on the newest Apple products.  But, it appears that with the launch of the iPhone 5s those same hands will be used for something more than just coveting Apple’s newest creation.  The introduction of the 5s also meant the introduction of “Touch ID”,  Apple’s latest technological toy, which has replaced the old passcode system as the means of unlocking one’s phone.  As always, Apple has outdone itself with the release of its newest device, however lawmakers have voiced concerns over Touch ID, specifically it’s Fifth Amendment implications.

 Touch ID has been touted by many as the fingerprint scanning device on the new iPhone.  But this is not what it does.  Instead, it goes deeper to get at information under your skin.  Put (very) simply, the technology in the home button of the phone scans information from the sub-epidermal layers of the skin and uses it as one variable in a larger mathematical representation of your fingerprint to identify you as the owner of the phone and unlock it.[1]  What this means is that the biometric system is more concerned with the capacitive properties of the user’s finger than with its print.[2]

 This procedure is markedly different from the alphanumeric password that iPhone users have been used to, in that it would no longer require users to remember such passwords.  While this may seem like a great idea for those of us whose brains are already at capacity, lawmakers and scholars have approached this new advancement skeptically.

 This skepticism grows out of the possible Fifth Amendment implications of using the Touch ID, specifically the right against self incrimination.  Under this privilege, a witness in a criminal or civil proceeding is protected from revealing information that has the potential to incriminate herself.[3]  The privilege however only extends to testimonial statements, which is a statement that reveals the contents of one’s mind.  A password is something that is (ideally) stored in one’s mind, and as such, qualifies as a testimonial statement.  Based on this logic, law enforcement cannot compel a phone’s owner to incriminate herself by requiring her to enter her password and provide access to the contents of her phone.

 Where the privilege fails is when we enter the realm of biometric data, data which includes but is not limited to fingerprints, blood work, and DNA.  Courts have determined that because this evidence does not speak to what someone “knows”, it is not testimonial and therefore is not privileged. Therefore, the use of the new Touch ID technology, which focuses solely on this biometric data, may make it easier for the government to compel information without implicating the Fifth Amendment privilege against self incrimination.  Without this privilege, a phone user would be forced to use her finger to unlock her phone and reveal its contents law enforcement. 

 Over the years our phones have become an extension of our brains, storing all types of what we may consider personal, classified information.  As our reliance on our phones and the information they store increases, it is now, more than ever, crucial to be aware of how these newest advances, while exciting, can impact the right to privately store and access that information.  It will take time to know whether these advancements have constitutional implications, but until then knowledge is power and consumers need to be alerted to the possibility of infringement on their rights.