The growing use of biometric technology—fingerprints, facial recognition and beyond—for data safekeeping—particularly for smart phones, personal computers, and identification—has raised a number of questions for Constitutional scholars. What Constitutional protections, if any, does biometric information have? Does biometric information require a warrant for law enforcement officers to compel its production? Would compelling production of a biometric password effectively force defendants to testify against themselves? Should the growing use of biometric information, by both private third parties and law enforcement, lead courts to reexamine prior precedents regarding privacy interests in personal technology and personal physical characteristics? This paper examines turns to a decision from the United States District Court of Northern California to find answers. That decision, while limited, reflects Supreme Court concerns about technology and offers a line of reasoning that could lead to heightened Constitutional protection for biometric information. This paper in turn argues that such protection, based on a more conjoined reading of the Fourth and Fifth Amendments, is necessary to prevent a new era of law enforcement intrusion into the personal sphere.
Secure the Smartphone, Secure the Future: Biometrics, Boyd, a Warrant Denial and the Fourth and Fifth Amendments,
17 Hastings Race & Poverty L.J. 604
Available at: https://repository.uchastings.edu/hastings_race_poverty_law_journal/vol17/iss2/11