Did you know: the U.S. Constitution's Fifth Amendment doesn't protect your fingerprint


We sincerely hope you never have to use this information in a court case. But knowing your rights is never wrong, so there you have it – the American constitution's Fifth Amendment exists to ban self-incriminating testimonials in court on the grounds that they are an outcome of torture or insincere compelling. Over the years, it has come to govern defendants from handing in their passcodes, which is considered a form of self-incriminating testimony.

One would imagine that fingerprints, which is a popular solution for securing your personal data, would be a subject of the Fifth Amendment as well, but for the time being, biometric data is outside its scope. This is how officers of the law are able to legally force a suspect to unlock their device with their fingerprint for investigation.

That's not all there is to it. The Fifth Amendment's application has varied considerably in regards to using digital data as evidence and testimony. For example, a 2012 case had the court rule out the amendment as it came to "a foregone conclusion" that the defendant's password-protected data was incriminating. But just a year before, a defendant whose hard drive was protected by encryption and didn't receive Fifth Amendment protection had the appellate court rule that if he were to give his decryption password, that would lead towards incriminating evidence, and consequently granting him Fifth Amendment rights.

Obviously, the application of a 225-year old law in a rapidly changing field like digital security is poised to create more than a few challenges along the way. With biometrics security technologies previously reserved for special applications – like fingerprint and iris scanners – trickling down to consumer devices like smartphones and tablets, an increasing number of people are adopting them to protect their data.

The courts are challenged with making new and sometimes counter-intuitive decisions related to biometrics as the security niche evolves rapidly. In its current state, the system allows a loophole through which defendants can invoke their Fifth Amendment rights for the fingerprint if their data is protected by both biometrics and a passcode, hence blocking access to it.

Moral of the story? The constitution protects your passcode, but the fingerprints are fair game for the court. Be mindful of that and stay safe!


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