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Which Constitutional right is being chipped away? The test for whether something is protected by the 5th has generally been "is it testimony, or is it somethin

Which Constitutional right is being chipped away? The test for whether something is protected by the 5th has generally been "is it testimony, or is it something that just is?" Fingerprints, other biometrics, and physical keys are all things that just are. No testimony involved. Not protected. The government can compel you to provide them. Passcodes and combinations are something you know. They're protected. I'm certainly open to changing the law to protect biometrics, but I don't see anything in the reporting on this case that indicates it's any different than preceding cases in the last 10 years that dealt with fingerprints.

dragonwriter 5y ago
> Fingerprints, other biometrics, and physical keys are all things that just are For nontrivial biometrics (and facial locking may not usually meet this) the act of unlocking is testimonial (as it demonstrates both the specific action and your knowledge thereof) as much as a password is. A command to “unlock this device with <biometric method>” is different than a command to simply provide, say, a fingerprint.
- function_seven 5y ago
  What about an order to "place your right thumb on this little circle", where the "little circle" just so happens to be the phone they seized from you? You're not revealing any knowledge about the specific action—they're directing you to do it. For the face scenario, an order to look directly at the camera is similar. You're not testifying that this laptop is indeed yours, or that you have access. The laptop is going to respond to your stare however it was already configured to do so.
  - dragonwriter 5y ago
    > What about an order to "place your right thumb on this little circle", where the "little circle" just so happens to be the phone they seized from you? Right, it doesn't, for instance, reveal that as a combination of quirks of the sensor and how I trained it, it only unlocks with my left index finger at a slight angle and a particular rolling motion, and moreover, doesn't reveal that I know that to be the case.
- alistairSH 5y ago
  I'm not grasping the difference between fingerprint scan and facial scan. Both have been ruled as acceptable and not covered by the 5th. Are you arguing that fingerprint unlock and facial unlock should both be protected? I'm open to that argument, but I'm not seeing how they are any more testimonial than providing a fingerprint (or DNA sample) for matching other evidence?
  - andrew_ 5y ago
    > Both have been ruled as acceptable and not covered by the 5th. As the article states, and some quick research would reveal, this is largely dependent upon which state, and which federal jurisdiction, the court is in. A final word has not been given on the matter and each court is allowed to interpret it as it chooses. As such, it has been ruled both for and against.
- tzs 5y ago
  It's testimonial that you are the device owner but that usually is not incriminating so wouldn't run into 5th Amendment problems. If for some reason it was incriminating prosecutors could avoid 5th problems by granting you immunity. Unless you are in the probably quite unusual situation where all they are trying to get you for is owning the device I don't think the act of unlocking is going to work well as something to hang your 5th hopes upon.
- yuliyp 5y ago
  In this case, the argument in the ruling is that there is no question that the defendant owns the laptop, so the act of proving that it's his account doesn't incriminate (since it's not establishing any fact not already known).

dragonwriter 5y ago

> Fingerprints, other biometrics, and physical keys are all things that just are For nontrivial biometrics (and facial locking may not usually meet this) the act of unlocking is testimonial (as it demonstrates both the specific action and your knowledge thereof) as much as a password is. A command to “unlock this device with <biometric method>” is different than a command to simply provide, say, a fingerprint.

function_seven 5y ago
What about an order to "place your right thumb on this little circle", where the "little circle" just so happens to be the phone they seized from you? You're not revealing any knowledge about the specific action—they're directing you to do it. For the face scenario, an order to look directly at the camera is similar. You're not testifying that this laptop is indeed yours, or that you have access. The laptop is going to respond to your stare however it was already configured to do so.
- dragonwriter 5y ago
  > What about an order to "place your right thumb on this little circle", where the "little circle" just so happens to be the phone they seized from you? Right, it doesn't, for instance, reveal that as a combination of quirks of the sensor and how I trained it, it only unlocks with my left index finger at a slight angle and a particular rolling motion, and moreover, doesn't reveal that I know that to be the case.
alistairSH 5y ago
I'm not grasping the difference between fingerprint scan and facial scan. Both have been ruled as acceptable and not covered by the 5th. Are you arguing that fingerprint unlock and facial unlock should both be protected? I'm open to that argument, but I'm not seeing how they are any more testimonial than providing a fingerprint (or DNA sample) for matching other evidence?
- andrew_ 5y ago
  > Both have been ruled as acceptable and not covered by the 5th. As the article states, and some quick research would reveal, this is largely dependent upon which state, and which federal jurisdiction, the court is in. A final word has not been given on the matter and each court is allowed to interpret it as it chooses. As such, it has been ruled both for and against.
tzs 5y ago
It's testimonial that you are the device owner but that usually is not incriminating so wouldn't run into 5th Amendment problems. If for some reason it was incriminating prosecutors could avoid 5th problems by granting you immunity. Unless you are in the probably quite unusual situation where all they are trying to get you for is owning the device I don't think the act of unlocking is going to work well as something to hang your 5th hopes upon.
yuliyp 5y ago
In this case, the argument in the ruling is that there is no question that the defendant owns the laptop, so the act of proving that it's his account doesn't incriminate (since it's not establishing any fact not already known).