4 ms·

I'm not sure how the courts will differentiate between biometric data related to authentication and biometric data from blood tests, breathalyzers or DNA tests.

I'm not sure how the courts will differentiate between biometric data related to authentication and biometric data from blood tests, breathalyzers or DNA tests. The latter are, in a sense, examples of forcing you to divulge something stored in your body.

rando444 8y ago
The only difference I can see is that in the case of alcohol, biometric data is the thing you are looking for. In the case of telephones, biometric data is being used to get access to something else.
checkyoursudo 8y ago
Implied consent (the authority the police use to try to force you to divulge your blood alcohol content) is a well-established area of law. The courts can differentiate it by saying that the legislature has written implied consent laws that cover what you are deemed to have consented to when operating a motor vehicle, and that the legislature has not written implied consent laws for cell phones/etc. Right now it's a pretty easy case for the courts, though higher courts have justified much worse with much less. It's possible a legislature could write implied consent laws for cell phones, but I don't think they have yet. Not sure if they'd withstand court review, but I am afraid they might.
- int_19h 8y ago
  > Implied consent (the authority the police use to try to force you to divulge your blood alcohol content) is a well-established area of law. Indeed - warrantless blood tests have been found unconstitutional by SCOTUS three years ago (Birchfield v. North Dakota).
tialaramex 8y ago
The UK fixed this for drink driving by making it an offence to refuse to submit to the alcohol tests. So they don't force you to implicate yourself for drink driving, you can choose instead to be prosecuted for refusing to provide a sample and have everybody assume (not at all unreasonably) that you refused because you knew you'd fail badly. Sometimes people are _so_ drunk they refuse to provide a sample without really comprehending that this will itself directly lead to getting arrested and prosecuted but minus any opportunity to get the results thrown out for any reason since it'll just come down to "Officer, did the suspect refuse consent to the required sample?". You couldn't do that exact workaround in the US because of the Constitution, but I'm sure a creative work around can be invented.
- 15155 8y ago
  > You couldn't do that exact workaround in the US because of the Constitution, but I'm sure a creative work around can be invented. The "workaround" in the United States is similar. When you apply for a driver's license, you agree to submit blood/breath/urine upon demand or lose said license automatically.
- somebehemoth 8y ago
  This is basically how it works in the US too. You are punished for not submitting to the test by revocation of your license and also, the refusal to submit can be used against you to help establish you were DWI.
mcv 8y ago
The article is quite clear about that differentiation: "the judge wrote that fingerprints and face scans were not the same as “physical evidence” when considered in a context where those body features would be used to unlock a phone." (Emphasis mine.) It's the context of using those body features to unlock a phone, that makes them testimonial rather than physical evidence. Outside that context, they can still be physical evidence. But does that mean the police can't use physical evidence to unlock your phone? I don't know if it's possible to get a fingerprint from a glass and use that to unlock a phone, but if it was, would that still be legal? What about if someone wrote their password on a note?

rando444 8y ago

The only difference I can see is that in the case of alcohol, biometric data is the thing you are looking for. In the case of telephones, biometric data is being used to get access to something else.

checkyoursudo 8y ago

Implied consent (the authority the police use to try to force you to divulge your blood alcohol content) is a well-established area of law. The courts can differentiate it by saying that the legislature has written implied consent laws that cover what you are deemed to have consented to when operating a motor vehicle, and that the legislature has not written implied consent laws for cell phones/etc. Right now it's a pretty easy case for the courts, though higher courts have justified much worse with much less. It's possible a legislature could write implied consent laws for cell phones, but I don't think they have yet. Not sure if they'd withstand court review, but I am afraid they might.

int_19h 8y ago
> Implied consent (the authority the police use to try to force you to divulge your blood alcohol content) is a well-established area of law. Indeed - warrantless blood tests have been found unconstitutional by SCOTUS three years ago (Birchfield v. North Dakota).

tialaramex 8y ago

The UK fixed this for drink driving by making it an offence to refuse to submit to the alcohol tests. So they don't force you to implicate yourself for drink driving, you can choose instead to be prosecuted for refusing to provide a sample and have everybody assume (not at all unreasonably) that you refused because you knew you'd fail badly. Sometimes people are _so_ drunk they refuse to provide a sample without really comprehending that this will itself directly lead to getting arrested and prosecuted but minus any opportunity to get the results thrown out for any reason since it'll just come down to "Officer, did the suspect refuse consent to the required sample?". You couldn't do that exact workaround in the US because of the Constitution, but I'm sure a creative work around can be invented.

15155 8y ago
> You couldn't do that exact workaround in the US because of the Constitution, but I'm sure a creative work around can be invented. The "workaround" in the United States is similar. When you apply for a driver's license, you agree to submit blood/breath/urine upon demand or lose said license automatically.
somebehemoth 8y ago
This is basically how it works in the US too. You are punished for not submitting to the test by revocation of your license and also, the refusal to submit can be used against you to help establish you were DWI.

mcv 8y ago

The article is quite clear about that differentiation: "the judge wrote that fingerprints and face scans were not the same as “physical evidence” when considered in a context where those body features would be used to unlock a phone." (Emphasis mine.) It's the context of using those body features to unlock a phone, that makes them testimonial rather than physical evidence. Outside that context, they can still be physical evidence. But does that mean the police can't use physical evidence to unlock your phone? I don't know if it's possible to get a fingerprint from a glass and use that to unlock a phone, but if it was, would that still be legal? What about if someone wrote their password on a note?