Faces and Fingers: Authentication
21 Pages Posted: 16 Feb 2020
Date Written: 2020
One of the most shocking outcomes of the pre-digital law versus post-digital world is the currently unconfirmed holding that although law enforcement may not compel the production of a password to unlock a mobile device, a finger, and likely a face, is fair game. You may be forced to “look” at your iPhone or “press” your finger against its fingerprint reader, but recitation of your password is off the table. Both logically and legally this result is quizzical. Merging these divergent outcomes, which both end in the same result—access—is the aim of this Essay, using as fodder a technical understanding of “authentication,” the organic statute behind device unlock. Because the sine qua non of authentication is identification and verification, unlocking a device necessarily imparts a truth telling: an expression of exclusivity, ownership, and control. These qualities are inherently testimonial; therefore, compelled device unlock based on a fingerprint or facial scan should be deemed to infringe upon the Fifth Amendment’s protection against self-incrimination.
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