Peter A Clarke

• “while securing digital devices is not a novel concept, the means of doing so have changed. Indeed, consumers have had the ability to utilize numerie or alpha-numeric passcodes to lock their devices for decades. Courts that have addressed the passcode issue have found that a passcode cannot be compelled under the Fifth Amendment, because the act of communicating the passcode is testimonial, as “[t]he expression of the contents of an individual’s mind falls squarely within the protection of the Fifth Amendment”
• “that utilizing a biometrie feature to unlock an electronic device is not akinto submitting to fingerprinting or a DNA swab, because it differs in two fundamental ways. .. a finger, thumb, or other biometric feature may be used to unlock a device in lieu of a passcode. In this context, biometric features serve the same purpose of a pass code, which is to secure the owner’s content, pragmatically rendering them functionally equivalent.”
• requiring someone to affix their finger or thumb to a digital device is fundamentally different than requiring a suspect to submit to fingerprinting
• Today’s mobile phones are not comparable to other storage equipment, be it physical ordigital, and are entitled to greater privacy protection.
• the Supreme Court acknowledged that smartphones are minicomputers withthe capability to make phone calls, a search of which “would typically expose to the governmentfar more than the most exhaustive search of a house: A phone not only contains in digital formmany sensitive records previously found in the home; it also contains a broad array of privateinformation never found in a home in any form—unless the phone is [present

As Australia does not have a Bill of Rights or protections drafted in terms set out in the 4th and 5th amendments to the US Constitution the decision has no real weight in Australian jurisprudence. That said, the analysis is a welcome addition to the general discussion about how the law should treat smart phones and the level of compulsion in requiring a person to make their phone available to the authorities. As the court said, the law is lagging long behind the technology. The legal principles, at their very base, is sound however their development is lagging. That is particularly so in Australia with a poor understanding of the privacy principles that are well advanced in other common law jurisdictions.

This decision has been reported on with gusto in Cops Can’t Force People To Unlock Their Phones With Biometrics, US Court Rules, Biometric phone unlocks can’t be forced by feds, says U.S. judge and Judge rules that no form of biometric security can be used to force a smartphone unlock.

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