By Conrad Glover
As technology used in cell phones advances, the cell phones become increasingly more safe and secure against those trying to access that information—that is, as long as those whom you seek to keep your information from is not the United States Government.
These days, many methods can be used to unlock a smart phone. For example, the new Samsung Galaxy 8 offers five different methods that users can choose to access their device. Cell phones are now commonly unlocked with four or six-digit PIN code or alphanumeric passwords, pattern unlock methods (where one traces set pattern through a grid of nine dots), fingerprint scanners, iris scanning methods, and finally facial recognition.
These methods are meant to keep the common person from accessing your phone. If you were to lose you phone or if it were to get stolen, these security methods would make it much more difficult for the average person to get access to you phone. There are roughly 10,000 possible combinations for a four-digit pin code and over 1,000,000 possible combinations for a six-digit pin code. The likelihood that someone would quickly crack this code is very unlikely with modern cell phone technology. The same goes for biometric identification methods like fingerprints, facial recognition, and iris scans. And while one can debate which method of biometric authentication is the most secure, the fact is the technologies are constantly improving and becoming more secure with each new iteration. For example, previous facial recognition software could be easily spoofed with a high-resolution photograph of the user. Newer software is more interactive and takes a much more detailed scan of the user face, making this method of security more fool-proof than the previous versions.
However, it is arguable whether or not these enhanced methods of protecting your cell phone data increase protection against the government. If the government were to produce a warrant, it is very likely that you would be obligated to unlock your cell phone for the government.
The defining issue is whether or not the method you choose to protect your phone is covered by the Fifth Amendment. The Fifth Amendment protection against self-incrimination is what is in play here. The Fifth Amendment states that no person shall be compelled in any criminal case to be a witness against himself. The determinative factor is whether the proscribed actions fall under the protection of the Fifth Amendment, is if the conduct in question is considered testimony. Recently, there has been quite a bit of debate as to what is actually protected. In essence, real or physical evidence is not protected by the fifth amendment. Testimony or some sort of communication is required to receive constitutional protection. That is why individuals can be compelled to produce their fingerprints, DNA samples, participate in a line-up or one-on-one identification, wear face paint, or put on a blouse. All of these actions involve physical evidence or physical characteristics.
Without a communicative component, or without thought being produced, there is no protected testimony. Thumbprints have already been found to not be protected by the Fifth Amendment by the courts. Similarly, since one can already be forced to appear in a line-up and wear face paint, it is unlikely that Fifth Amendment protection will extend to facial recognition or iris scans. You are protected from providing your password, because providing that would require you to produce thought.
Therefore, if security from government intrusion is your concern, consider whether the newest piece of technology is really the right choice.
*Disclaimer: The Colorado Technology Law Journal Blog contains the personal opinions of its authors and hosts, and do not necessarily reflect the official position of CTLJ.