Why the Constitution Can Protect Passwords But Not Fingerprint Scans

TIME

Cellphone fingerprint passcodes weren’t on James Madison’s mind when he authored the Fifth Amendment, a constitutional protection with roots in preventing torture by barring self-incriminating testimonials in court cases.

Yet those tiny skin ridges we all share were at the heart of a Virginia court case last week in which a judge ruled that police, who suspected there was incriminating evidence on a suspect’s smartphone, could legally force the man to unlock his device with its fingerprint scanner. While the Fifth Amendment protects defendants from revealing their numeric passcodes, which would be considered a self-incriminating testimonial, biometrics like fingerprint scans fall outside the law’s scope.

“If you are being forced to divulge something that you know, that’s not okay,” said Marcia Hofmann, an attorney and special counsel to digital rights group Electronic Frontier Foundation. “If the government is able through other means to collect evidence that just exists, then…

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