A couple of years ago, I set out to interview every member of Congress I could find with a computer science degree as a result of the increasing clash between tech innovation and the laws and lawmakers that are falling more hopelessly behind the times. Out of 535 members of Congress, incredibly, I could find only four lawmakers with such a background.
I was reminded of that reality with word we’ve just got that the FBI, for the first time, has forced a suspect to unlock his iPhone X using Face ID. It happened, reports Forbes, as part of a child abuse investigation. In early August, the FBI raided the home of a 28-year-old suspect who would go on to be charged with receiving and possessing child pornography. “With a search warrant in hand,” Forbes notes, “a federal investigator told (the suspect) to put his face in front of the phone, which he duly did. That allowed the agent to pick through the suspect’s online chats, photos and whatever else he deemed worthy of investigation.”
Biometrics, to be sure, have long been touted as a much more secure alternative to using character-based passcodes to lock devices, and they certainly are more difficult to copy or do an end-run around. But here again, the pace of technology innovation is rapidly outrunning the scope of the rules governing the U.S. justice system, with this news about Face ID serving as a perfect example.
Fred Jennings, a senior associate at Tor Ekeland Law, told Forbes he thinks “the law is not well formed” around the use of something like Face ID, and it’s easy to see why. When you think about something like the Fifth Amendment, we all know it protects us against self-incrimination. But should, er, your face be covered by the same bit of legalese that protects you from having to cough up a piece of knowledge if it will incriminate you? The police may argue you have no expectation of privacy for your face when you’re out in public, and we sort of intuitively know that’s true, right? You can’t get mad if we’re both in a restaurant and I’m … looking at you. However, the other side of the coin to this is you could argue, well, Face ID, a passcode — those are being used to the same end. To unlock a phone, which police shouldn’t be able to force you to do.
“In previous rulings,” Forbes notes, “suspects have been allowed to decline to hand over passcodes, because the forfeiture of such knowledge would amount to self-incrimination. But because the body hasn’t been deemed a piece of knowledge, the same rulings haven’t been applied to biometric information, like fingerprints or face scans … Jennings thinks that as long as there’s no specific legislation dealing with this apparent conflict, courts will continue to hear arguments over whether forced unlocks via facial recognition is a breach of the Fifth Amendment.”
This gets even more specific and hyper-narrow, Jennings continues, arguing that if it’s a fingerprint code for a phone that we’re talking about, the knowledge of which finger unlocks the phone could be construed as a piece of knowledge protected by the Fifth Amendment. But, again, that hasn’t been tested in court yet.
One more wrinkle worth noting, which ensures this push-pull situation between law enforcement and tech will continue. With the iPhone 8 and iPhone X, for example, you can hold the side button and one of the volume buttons to activate SOS Mode, which will prevent Face ID from being used. In older iPhones, a few click taps of the power button does the same thing.
Meaning, we’ll likely see more headlines about Face ID being forced upon suspects, perhaps savvier suspects figuring out how to get around that requirement, but it will probably be longer still before federal lawmakers weigh in and put new limits on technology like this.
