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Biometrics and the Fifth Amendment: A New Frontier
In recent years, new questions have arisen regarding privacy and the scope of certain constitutional protections, stemming from the dramatic increase of use of electronic devices, such as smartphones, tablets, and laptop computers, to conduct business. The Government's interest in accessing such devices is increasing and unsurprising: electronic devices often contain a goldmine of communications of interest to law enforcement, including text messages, email, and social networking applications. Additionally, some of the most frequently used "apps" store highly sensitive data, including financial records, health records, photographs, and evidence of internet activity, just to name a few.
When used for work, mobile devices routinely contain employers' proprietary and confidential data. The struggle between Government requests for access to such data and constitutional protections — including the Government's ability to compel the turnover of biometric "keys" to unlock mobile devices — create areas of concern for employers. How the protections of the Fourth Amendment against unreasonable seizures and the Fifth Amendment against self-incrimination will apply to information stored on their employees' personal and business mobile devices is starting to unfold.
|The Legal Landscape Surrounding Biometrics Continues to Evolve
Apple began the smartphone era with the release of the iPhone in June 2007. See, Stephen Silver, "Apple Details History of App Store on its 10th Anniversary," Appleinsider (Jul 5, 2018). Currently, new apps — with new methods of tracking and storing users' personal data — are constantly released and the amount of information stored on mobile devices is rapidly increasing. To protect the vast quantity of sensitive data stored on mobile devices, mechanisms to secure devices have also rapidly progressed since smartphones were first introduced.
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