A topic of much discussion of late has been reporting about a Virgina court ruling involving access to a data stored on a phone. In this case a man was charged with assaulting a woman and evidence of the crime was believed to have been recorded. A video of the assault was suspected of being stored on the man’s phone. Prosecutors sought a court order to force the defendant to unlock his phone so they could search it for that video.
The judge in the case ruled that the defendant providing a pass code would be divulging knowledge that could incriminate themselves. The defendant giving investigators that pass code would provide access to data on the phone that could incriminate the defendant. The judge ruled that defendant did not have to provide the pass code given their right against self incrimination as described in the fifth amendment to the U.S. Constitution. But the judges ruling didn’t end there.
The judge ruled that giving police a fingerprint is akin to providing a DNA or handwriting sample or an actual key, which the law permits. The FBI description states:
Fingerprints vary from person to person (even identical twins have different prints) and don’t change over time. As a result, they are an effective way of identifying fugitives and helping to prove both guilt and innocence.
The US Marshals Service maintain a page dedicated to the history of fingerprints noting that the first systemic use of the technology was the NY State Prison System in 1903.
It is interesting that as fingerprints are ‘something you are’ like other identifying characteristics such as skin, eye, or hair color; and unlike a pass code (or social security or drivers license number) or ‘something you know’ you cannot withhold your fingerprint from law enforcement personal seeking to determine your identity.
