by Dale Chappell
Facial recognition might make a cellphone more secure than a simple password, but it also gives the police less work to do if they want to search that phone.
By switching from a password to facial recognition or other biometric security gateway, people are unwittingly shifting the burden cops face to get into that phone, experts say. A password requires the protection of the Fifth Amendment right against self-incrimination, a tougher nut to crack for law enforcement. However, facial recognition is bypassed with a simple search warrant.
The difference is important.
“In the same way that giving someone a Breathalyzer test or giving someone a blood test to try to determine the presence of alcohol is not testimonial in a Fifth Amendment sense,” facial recognition falls under that same umbrella, said John Verdi, the vice president of policy at the Future of Privacy Forum.
Police forcing someone to turn over a password, even with a search warrant, is considered self-incriminating and would be unconstitutional, Verdi pointed out. “High Courts have ruled consistently that passcodes are ‘testimonial.’”
The makers of cellphones, however, are rushing forward to get away from passwords and to rely entirely on facial recognition. Apple, IBM, Microsoft, and Intel have all filed patents for some form of “continuous” authentication. This means that the phone (or computer) would lock down if it doesn’t recognize the user as its owner, after someone else takes over.
When Grant Michalski’s iPhone X was seized, police made him unlock it using facial recognition with little more than a search warrant. But once it was unlocked, they needed a password to search the phone. The warrant didn’t cover that. While the warrant requiring Michalski’s face was the first of its kind, this could become common.
Even televisions and other voice-controlled devices are affected. Today’s smart TVs have microphones that monitor the room, waiting for a command to do something. “It’s convenient and it’s cool and, therefore, the market proliferates it,” Brian Jackson, a scientist with the Rand Corp. studying criminal justice, said.
“I was talking to folks and they’re like, ‘it’s actually getting tougher to find ‘TVs that don’t have that built in,’” Jackson said. “It would not surprise me if, as biometrics get more instituted to more and more devices for various convenience-related things, that it’ll seem much less unusual for these sorts of things to crop up.”
Most people don’t choose a phone with the thought that someday cops will want to search it.
They want the convenience of facial recognition or voice recognition for their TVs. “… things that we at one point would have thought were invasive or very different have become routine,” Jackson noted.
For the sake of convenience, people are unwittingly shifting their constitutional protections in favor of the police.
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