In 1787, as our founding fathers were writing the Constitution,
there is no way they could have even dreamed of the advances in technology the
next 250 years would bring. Because of this, we are now faced with trying to fit
modern problems into a framework conceived over two centuries prior.
The infiltration of technology into the law is not
particularly new. The first conviction using fingerprint evidence was obtained
in 1911. Since then, the courts have routinely upheld the use of fingerprints
as evidence, and subject to Fourth Amendment protections in obtaining them. This
standard principle prevailed for decades, until the introduction of fingerprint
technology being utilized as a security measure on electronics.
Federal judges in many districts have concurred with
the longstanding precedent that compelling someone to provide their
fingerprints to unlock electronic devices is admissible when a proper search
warrant is obtained. However, some courts have found that with the shift in the
utilization of fingerprints, so have the implications in constitutional
protections.
A federal judge in the District of Northern California
ruled that compelling someone to provide their biometric data—such as
fingerprints or facial images—is testimony rather than evidence, in the context
of unlocking an electronic devise.[1]
This interpretation of the change from fingerprints
being strictly evidence, to a form of testimony, is further expounded upon by a
federal judge in the Northern District of Illinois. The judge held, “By using a
finger to unlock a phone's contents, a suspect is producing the contents on the
phone. With a touch of a finger, a suspect is testifying that he or she has accessed
the phone before, at a minimum, to set up the fingerprint password
capabilities, and that he or she currently has some level of control over or
relatively significant connection to the phone and its contents.”[2]
Taking it even further, in 2016, law enforcement
approached a Michigan State University computer science professor, asking him
to create a 3D-printed replica of a dead man’s finger. They believed the
fingerprint would unlock a murder victim’s cell phone, possibly leading them to
the killer. “Once printed, a micron-thick coating of metal – gold, copper or
silver – is applied to the surface. This recreates the electrical conductivity
found in human skin that is required to make modern capacitive fingerprint
readers work.” [3]
With every new technology made available, it is
inevitable it will eventually be the subject of legal arguments. The advent and
popularity of biometric data outside of fingerprints has now been the topic of
discussion in courtrooms.
Just this year, Facebook settled a class action
lawsuit in which they will be required to pay $650 million for violating Illinois
Biometric Information Privacy Act (BIPA) when their “tag suggestions” feature
violated the law by, “collecting and storing digital scans of faces without
notice or consent.” [4]
Some questions to ponder:
Do you believe, with this expanded use of fingerprints,
the courts need to expand the classification of fingerprints to include testimony?
What about creating a prosthetic fingerprint and using it to open a cell phone?
What constitutional implications does that have? Does it matter if the person
is alive or deceased?
Also, do you agree with the Facebook ruling? Do we have an expectation of privacy regarding other biometric data? When we walk down the street, we don’t expect an individual we pass on the street to not look at our face. Is it different when it comes to technology using facial recognition for commercial reasons? Why or why not?
[1] Burt, Chris, “Judge rules U.S. law
enforcement cannot compel biometrics to unlock device” (January 14, 2019). https://www.biometricupdate.com/201901/judge-rules-u-s-law-enforcement-cannot-compel-biometrics-to-unlock-device
Last visited October 24, 2021
[2] In re Application for a Search Warrant, 236 F. Supp. 3d 1066, 1073 (N.D. Ill. 2017)
[3] Solon, Olivia, “Police seek to unlock murder victim's phone using 3D replica of fingertips” https://www.theguardian.com/technology/2016/jul/22/smartphone-fingerprint-security-police-unlock-3d-printer-murder-victim-biometrics Last visited October 24, 2021.
[4] Bryant, Jennifer “Facebook’s $650M BIPA settlement ‘a make-or-break moment’”(March 5, 2021). https://iapp.org/news/a/facebooks-650m-bipa-settlement-a-make-or-break-moment Last visited October 24, 2021
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ReplyDeleteI love this topic. *Puts on tinfoil hat* Working in Information Security, biometric data is classified as highly confidential and appropriate safeguards must be put in place, sometimes equivalent to patient health information. Even researchers looking at “de-identified” patient’s iris scans debatably fall under this scope. Extensive security controls are put in place because of how important this data is and its ability to tie directly to an individual.
ReplyDeleteI’m not sure of post-mortem constitutional rights, but I’m under the assumption that no privacy protections exist for the deceased. For people that are alive however, I believe that providing fingerprints to a device communicates who controls it and the contents contained. For that reason, I believe it’s a testimonial act because it can be self-incriminating and this testimony can be used to determine innocence or guilt.
Regarding the Facebook ruling, I completely agree. Facebook users willfully upload photos, BUT there should have been consent and notice that the platform would be running DeepFace, machine learning algorithms to recognize your face and everyone else’s. Very cool technology. Total invasion of privacy. Someone passing by and looking at you isn’t collecting a thorough timeline of where you’ve been, who your friends are, what you’re doing, and creating a unique identifier of your face in the chance that person crosses you in the future. By Facebook’s awesome history, we all know that data will have the upmost protections and won’t be shared in the slightest.
Wow, I agree, the founding fathers could not have anticipated this.
ReplyDeleteI have a hard time agreeing with the courts that fingerprints and facial recognition is a form of testimony. For me, when used on electronics, it is no different than using a key to get into a building. With the proper warrant, a key could be found/obtained to enter the areas needed. It is also the same in my head a password which can be compelled as well with proper warrants. In my head, the same arguments apply for the prosthetic fingerprint. It is a compelled password or an authorized hacking of the machine. For me, it doesn’t matter if living or deceased if the password description is used.
Constitutionally, this is more difficult as the founding documents do not address situations like this. Is this considered the acquisition of evidence or implicating yourself? I think that is the crux of the argument.
While I disagree with Facebook using biometric data for marketing purposes, this could have been reasonably anticipated by the user. A user knowingly stores that information on the device and then knowingly shares it with apps they choose. This choice can equal consent for the app to use the information the user provides.
Commercial use outside of apps not explicitly given permission by the user seems like a violation of privacy. We should have a reasonable expectation of privacy and our likeness and biometric data should not be used without our consent for commercial purposes.
In the Biometric update article Judge Westmore noted that “technology is outpacing the law” and it seems that may be case for years to come. Technology capabilities is expanding so quick – I’m even having a hard time keeping up as a consumer.
ReplyDeleteI have a hard time deciding one way or another if the courts need to expand the classification of fingerprints to include testimony, because it seems clear it should fall under evidence. After reading the logic behind fingerprints being used as testimony, I can see both sides. Does this situation change/matter if it’s the victim or the “person of interest” when unlocking the phone? In the situation provided with the deceased individuals finger being printed to access his phone, does that count as testimony even though that person cannot provide any form of verbal testimony?
We are all about technology this week - the good, the bad and the ugly. Great post Jacob! I actually wondered when this issue would hit the Courts. As a consumer, I often joke about how everyone's debit card machines are different and it would just be easier if everyone had "retinal scanners". But siding with Amber and Trina's comments above, I would be concerned with the Courts declaring fingerprints as testimony. Let's face it technology is awesome. But again, the Courts do not need to include fingerprints as testimony. That is a stretch. We use technology to access phone data. Forensics labs do it all the time. There are supporting elements here, but I still think a Court making this ruling is pushing it too far. With respect to the Facebook case. I agree too. Notice and consent are the key words here.
ReplyDeleteCool post, Jacob! I did not know that biometrics had moved from the evidence bin to the testimony bin. I wonder if there is a line of protection under the 5th amendment, protecting against government self-incriminating testimony.
ReplyDeleteLooking into this, I can agree on the side of biometrics being used as testimony because when using them to unlock cellphones, they are usually in place of a passcode, which is testimony. Secondly, I can see how the ability to unlock said phone with the use of biometrics is indicative of that individual possessing or controlling that device, meaning they have some, if not all, control over the contents of that device.
On the contrary, the point that Amber made above is valid, what if that person cannot or did not give verbal consent to using their biometrics to open a phone, brining it back to the 5th amendment of self-incrimination. Biometrics are not communicative.
I suppose, until the Supreme Court makes a ruling on this, it be best not to provide biometrics unless under a warrant.
The leap from evidence to testimony for a fingerprint emphasizes the value of precedent in case law that will develop as quickly as technology does. My thought about the switch from evidence to testimony is the same as Arin's. That would bring the 5th amendment into play in many cases, and being able to plead the 5th when it came to a phone, I believe, would be justified. Our phones hold a record of us. They aren't as public as our posts on social media. I think there is a difference.
ReplyDeleteAnything we put in the public's view is public. We made it public. We can't withdraw it; however, recognizing someone's face after seeing them on the street is certainly different from facial recognition technology. I am not sure where to draw the line here. The mere possibility suggests caution on our part to what we put out for public view.
However, if we allow any tracking on our phones, we have also made that information public. I am beginning to wonder if anything can be private anymore.
Can 3-D printing reconstruct a deceased man's fingerprint to provide incriminating evidence? This is a stretch to gather evidence. A deceased person's phone record could provide evidence, I believe, but not testimony.
Jacob and others, "Minority Report" the movie, gave me the chills. It's fictional and Hollywood but like the novel "1984," the rights to privacy, not inducing self-incrimination (5th Amendment), biological and biometric data banks are all disturbing and brilliant at once. Whether the issue is what is testimony or evidence or, where can technology and its adaptation be used in law, I believe, these questions will more and more dominate our lives. Privacy, unintended self-incrimination or the appearance thereof, genetics and DNA, brains scans, brain waves and even memory retrieval, (yeah that's a thing), may all possibly play a part in defenses and prosecutions in years to come. Our Founders might be rolling over in their graves.
ReplyDeleteJust had to make a comment on the new corporate name for Facebook and affiliates -- Meta. Couldn't help but think of our class discussion on metadata and see a correlation with the new name. Privacy is something of the past.
ReplyDeleteDo you believe, with this expanded use of fingerprints, the courts need to expand the classification of fingerprints to include testimony? What about creating a prosthetic fingerprint and using it to open a cell phone? What constitutional implications does that have? Does it matter if the person is alive or deceased?
ReplyDeleteYeah, this is definitely complex. I think if classifying the contents behind a security biometric feature such as a fingerprint as evidence rather than testimony further enhances the finding and regulations of such evidence, then yes. I do think creating the prosthetic fingerprint should not be allowed without proper consent (next of kin) or some sort of exception, not the norm. It does matter if the person is alive or deceased when it comes to reproducing a part of their body.
Also, do you agree with the Facebook ruling? Do we have an expectation of privacy regarding other biometric data? When we walk down the street, we don’t expect an individual we pass on the street to not look at our face. Is it different when it comes to technology using facial recognition for commercial reasons? Why or why not?
I do believe we have an expectation of privacy regarding biometric data. Of course it is different when using facial recognition software, I don't consent to have my image and data be kept by someone else.