When a Touchscreen Becomes Testimony - the 5th Amendment Today
The Fifth Amendment’s Digital Identity Crisis Consider two people stopped in separate traffic stops under identical circumstances. Both have encrypted smartphones on the passenger seat—devices holding personal messages, financial records, photographs, location history, and the ordinary record of a private life. The first person protects the phone with a memorized passcode. Courts have generally treated compelled disclosure of such a code differently because revealing it requires disclosure of knowledge residing in the person’s mind—although courts disagree about when the government may invoke a “foregone conclusion” exception. The second person protects an identical phone with a fingerprint. Some courts have allowed police to use that biometric to open the device, treating a fingerprint as physical evidence—like a blood sample or an ink print. But the physical-evidence analogy becomes strained when a biometric identifier is used not merely to identify a person, but to open an encrypted...