Aggressively Protecting Your Rights

New Apple iPhone Could Come With Fifth Amendment Implications

| Sep 22, 2017 | Criminal Defense

Technological and electronics giant Apple recently unveiled the newest design of their ubiquitous iPhone, the iPhone X. Among the talked-about features of the updated smartphone are a faster processor, wireless charging, glass screens on both front and back, side-to-side display and a better camera. Perhaps the most exciting – yet contentious – feature is FaceID, a new way of unlocking the device by the user undergoing a 3D facial scan using infrared projection.

Though the futuristic technology comes with several positives: it’s hands-free, there’s no need to remember a four- or six-digit pass code, and it seems to address potential safety issues by being, in the words of Apple, much less vulnerable to hacking. Those purported benefits aside, FaceID has some outspoken detractors.

Constitutional implications?

Staff attorneys at the American Civil Liberty Union have spoken out about the possible hazards of FaceID, namely the potential for abuse by law enforcement. The civil rights watchdog organization argues that you could be forced to unlock the phone simply by a police officer or agent holding the phone in front of your face. Opening the phone and its otherwise protected data through this method amounts to, the ACLU states, a warrantless search and a violation of your Fifth Amendment right against self-incrimination.

A law professor at the University of Oregon offers an interesting perspective about the issue: the Fifth Amendment protects you from self-incrimination because of your spoken communication, but it might not cover physical attributes like fingerprints, facial recognition or voice recognition.

Since the iPhone X hasn’t even officially rolled out, any potential Constitutional implications of its new features are up for debate and are still theoretical. If, in the meantime, you are facing criminal charges (or investigation) and have concerns about your phone’s data or your overall Fifth Amendment rights, contact an experienced criminal defense attorney.