The Fifth Amendment is a right that protects you from compelling force that would self-incriminate yourself in a criminal case. These testimonial communications that would be protected under the right include using your own mind and its content, can and cannot be verbal as well. The confusion if the Fifth Amendment applies lies mostly with password decryption that would give access to a person's phone and critical information that is on it. Is it a form of testimony? Do the cops have the authority to compel a person to unlock their phone as evidence?

As the simple answer, no; at least not in the state of California. This also applies to the order of an active arrest warrant given by the court, precluding the compelling of making technological encryption a temporary safeguard in criminal law. Touch ID as fingerprint technology has been a feature of many cellphones from companies such as Apple and Samsung since the early 2010's. Face ID creates a 3-D map of the phone’s owner’s face with over 30,000 data points that secures the device so that it may only be unlocked after it confirms that its owner is trying to unlock it. It's considered to be biometric data, the configuration of recognizing a person's face to unlock their technological device.

Riley v. California is a precedent case where the Court ruled that the police must have a warrant before searching a cell phone that is critical to the case. The Supreme Court stated that, “A cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form – unless the phone is.”

Later in 2018, the distinction between a numerical password and a fingerprint password is whether if it would be considered effort on the suspect's mind was the legal issue at hand in many court cases. It was ruled by the U.S. District Court for the District of Columbia that using the fingerprint option does not require revealing contents of the mind. Staff Attorney Brett Max Kaufman from the ACLU Center for Democracy made the argument however that iPhone users choose the finger and face print options as the same for manually entering a code as the consensus result, to open our phones.

The difficulties of this doctrine application extends to the Fourth Amendment that guarantees due process, where the Court ruled under the case of Davis v. Mississippi that fingerprinting passes due to its lack of invasion into a person's individual life and thoughts that are claimed as a search. This decision bleeds into the division between whether passcode decryption is constitutionally sacred under the Fifth or rather that it is adjacent to what the government can already access about you online and offline.

A couple of weeks ago, the Supreme Court ruled in the state of Illinois under People v. Sneed that the Fifth Amendment does not protect individuals from entering a phone's passcode under a legal official's call. Mr. Sneed was compelled to provide or enter the passcode onto his phone, filed under a motion by the court. The trail court denied the motion, and the ACLU of Illinois filed a friend-of-the-court brief to defend their decision.

This protection of the Fifth Amendment of course does not apply to physical evidence such as a blood sample, and the government must have an understanding with proof that the evidence already exists that would originally be deemed as a testimonial in order to overrule that privilege. Each state has their own specific doctrine on this subject matter which can be incriminating for an individual depending on the criminal process.

Related Content:

• Court Holds That 5th Amendment Self-Incrimination Privilege Precludes Compelling Fingerprint or Facial Recognition Access to Digital Devices | Cleary Enforcement Watch
• Gov-Uscourts-Cand-336910-1-0.pdf (documentcloud.org)
• Carpenter v. United States | American Civil Liberties Union (aclu.org)

Supporting Documents:

• Police Should Not Be Allowed to Compel Our Cell Phone Passwords | ACLU
• Cell phones and the 5th Amendment right against self-incrimination - Campbell Law Observer
• EFF to Court: Forcing Someone to Unlock and Decrypt Their Phone Violates the Constitution | Electronic Frontier Foundation