A Virginia Circuit Court judge recently said that it was not okay for cops to force suspect's to unlock their phones with a passcode. (Thanks, the Constitution!) However, the judge also ruled that it was okay for cops to force suspects to unlock their phones with a fingerprint. Wait, what?


The case in question is a little tricky, but the implications of setting such a precedent are huge. In the Virginia case, police were investigating a man accused of trying to strangle his girlfriend. Since the man had a video surveillance system set up, the cops had reason to believe that there might evidence on his phone, and so after obtaining a search warrant, they asked the man to unlock his phone with a passcode so that they could look for it. Citing his Fifth Amendment right not to incriminate himself the man refused, and the police took him to court.

Based on the law, the judge's reasoning sort of makes sense. He basically said that biometric data is not covered under the Fifth Amendment. Police can lawfully obtain DNA, for instance, as part of an investigation, so why should a fingerprint be treated any differently?


Well, it appears we have a bit of a loophole. Since fingerprint technology on smartphones, like Touch ID, was essentially implemented to do away with the passcode and give users more security, it's terribly ironic that it actually gives police easier access to private information.

However, this is a perfect example of technology moving faster than the law can. The precedents set and laws written that allow DNA collection, for instance, came well before fingerprint technology appeared on smartphones. In fact, Virginia passed its law allowing DNA evidence to be collected from suspects, regardless of the Fifth Amendment, all the way back in 2002.

A lot's changed since then. And the timing of this recent Virginia judgement is especially intersting. Quite curiously, the topic of advanced technology limiting police access to suspect's private information has been pretty hot lately, since Apple and Google both implemented advanced new encryption methods that make it (virtually) impossible for police to gain access to data on a smartphone.

Cops hate this! Arguments for tech companies to relax their encryption policies to make it easier for law enforcement to gain access to private user data bubbles all the way up to FBI director James Comey He thinks that companies like Apple and Google are enabling users to "place themselves above the law." Though it's also worth pointing out that police don't always invade people's privacy in the name of the law.


So now there's another way—at least in Virginia, there is. It's unclear if this Circuit Court ruling will be appealed, and it's worth pointing out that police might still be unable to access the suspect's data in this case because it's possible that they'll still need the passcode. Nevertheless, it sets a dangerous precedent for cases like this around the country and serves as a chilling reminder that the watchmen can, sometimes, see around corners. [WSJ, Pilot]

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