Does iPhone X’s Facial Recognition Fall Under the Fifth Amendment?

By Nicholas Parsons
Nicholas Parsons is a junior at the University of Pennsylvania studying philosophy, politics, and economics.

We have all heard about the new iPhone X, which employs a new technology that allows the user to open their iPhone simply by looking into the camera. Apple is not the only one currently utilizing facial recognition; for example, Facebook stores biometric data for suggesting tags and Google applies a similar technology to organize photos into groups based on the faces in the pictures This facial recognition technology, however, should be put into question before being used so broadly and freely. If not used carefully, it could come into conflict with several laws.

The biggest concern is that authorities will be legally allowed to compel suspects or persons of interest to open their phones with facial recognition. [1] This problem could mirror the one encountered with previous iPhones that have a thumbprint lock. Because a fingerprint is a physical part of each individual, it doesn’t qualify as a “password” in the traditional sense. Thus, it’s uncertain whether it should fall under the Fifth Amendment’s right against self-incrimination in the same way that passwords and passcodes fall under it. [2]

Back in 2014, a Virginia Circuit Court Judge ruled that law enforcement has the power to force individuals to open their iPhones with their fingerprint. Despite the ruling, it’s uncertain whether authorities have used this method widely for investigational purposes. [2] Contrarily, traditional passwords and passcodes fall under Fifth Amendment Protections. In the case of iPhones with touch passwords, after 48 hours of no use, or after resetting the phone, the iPhone prompts the user to enter their passcode. Once this is achieved, authorities no longer can compel individuals to open their iPhones. [2]

So the question remains: will facial recognition technology be treated like the fingerprint unlock or like the traditional passwords and passcodes? It seems likely that facial recognition will follow the precedent set in 2014; however, this won’t be known for certain until after the legal proceedings. Complicating this further, some speculate that a feature is being added that requires the user to input a passcode after pressing the home button five times. In addition, the new iOS prompts the user to enter a passcode upon hooking the phone up to the computer. These would serve as additional barriers for law enforcement upon trying to obtain information from an individual’s phone. [3]

Apple isn’t the only company, however, which has run into legal scrutiny when it comes to new device features. Facebook’s facial identification technology, used for suggesting tags to an individual, has encountered legal problems. In Illinois, Facebook was sued for violating the state’s Biometric Information Privacy Act. [4] This act, also referred to as “BIPA”, essentially bans all bulk collection of biometric information in absence of a detailed “written policy” of how the biometric data will be collected and later discarded. BIPA is made as a preventative measure against identity theft. [5] In regards to the same law, Illinois has been involved in lawsuits against Google, Snapchat, and Shutterfly for similar biometric information technologies. Each company argued, along similar lines, that their base is not in Illinois and the law should therefore not apply. [4]

Some argue that facial recognition should be treated in the same way as a password. It remains to be seen whether it will fall under Fifth Amendment protections or not. The fact remains that all new technologies present new legal disputes, and bring about new questions regarding if and how law enforcement will be allowed to use it. We can only hope that authorities do not exploit iPhone’s technology too broadly in the future.

[1] Waddell, Kaveh. "Can Cops Force You to Unlock Your Phone With Your Face?" The Atlantic. September 13, 2017. https://www.theatlantic.com/technology/archive/2017/09/can-cops-force-you-to-unlock-your-phone-with-your-face/539694/.
[2] Waddell, Kaveh. "Police Can Force You to Use Your Fingerprint to Unlock Your Phone." The Atlantic. May 03, 2016. https://www.theatlantic.com/technology/archive/2016/05/iphone-fingerprint-search-warrant/480861/.
[3] Fox-Brewster, Thomas. "Does Apple Face ID Make It Easier For Feds To Hack The IPhone X? Yes And No." Forbes. September 19, 2017. https://www.forbes.com/sites/thomasbrewster/2017/09/12/iphone-x-faceid-security-danger/#4160e4ce512d.
[4] Coldewey, Devin. "Facebook Stalls in Lawsuit Alleging Its Facial Recognition Tech Violates Illinois law." TechCrunch. December 29, 2016. https://techcrunch.com/2016/12/29/facebook-stalls-in-lawsuit-alleging-its-facial-recognition-tech-violates-illinois-law/.
[5] 740 ILCS 14/  Biometric Information Privacy Act. http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=3004&ChapterID=57.
Photo Credit: Flickr User Martin Hajek 

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