Does facial recognition threaten the choice to plead the Fifth?

The Fifth Amendment protects against self incrimination. Does facial recognition bypass these protections?

Criminal investigation shows like CSI and Law and Order commonly use the phrase "I plead the Fifth." The phrase comes from the protections that are present under the Fifth Amendment of the Constitution. This amendment states no one is required to serve as a witness against themselves. In other words, someone charged with a crime does not have to answer the questions asked by the police.

One question that police may ask is "what is the password to your phone?" Without a warrant, they generally cannot move forward with a search of your phone without your permission. Without a warrant, you generally do not have to give police the password or permission to search the phone.

But what if the officers do not need to ask? What if they can just point the phone at your face and it automatically unlocks?

This question is no longer one of science fiction plotlines - it is our current reality. Apple recently unveiled its new iPhone X. One of the key marketing points: this phone can memorize your face. It can learn who its owner is. It can recognize your face and unlock whenever you pick it up to use it.

Pretty convenient...unless you are trying to keep it locked so police do not go through the information on the phone.

A recent piece by PBS Newshour discussed this issue, noting that Apple has included some safeguards to help prevent these issues. The phone user can put the phone in SOS mode, essentially shutting down the facial recognition technology, by hitting the power button five times. Unfortunately, someone who finds themselves suddenly under arrest may not think to lock his or her phone before going into police custody.

What does the freedom against self-incrimination protect?

It is important to note that this protection does have limitations. It does not extend to protect a person from the use of his or her fingerprints or blood against themselves. As such, it is likely that this protection will not extend to an individual's face; potentially resulting in the use of an accused individual's face to bypass security on his or her phone.

What options are there to protect your privacy?

If using the new Apple or another phone with similar facial recognition technology, it is best to continue using a six digit pin to unlock the phone. These privacy questions also serve as a reminder that anyone facing criminal charges should take the allegations of wrongdoing seriously.

Technology is always changing. The best way to ensure your rights are protected is to seek legal counsel. An experience criminal attorney can help ensure that technological advances like these are not used against you.