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Welcome to our October 2013 Newsletter!  Please take the time to read the article and contact us should you have any questions or concerns.


Law Offices of Salar Atrizadeh

Apple's Biometric Authentication Technology May Weaken Fifth Amendment Protections

As part of the newest iPhone, Apple has introduced biometric authentication technology, which allows users to unlock their devices using their fingerprints. The legal implications of this new technology may result in a lack of protection under the Fifth Amendment of the U.S. Constitution, which intends to protect individuals against self-incrimination (i.e., evidence that may lead to criminal prosecution). Do you store information on your electronic devices, such as cell phones, tablets, and laptops? Does this information also include personal or business data? If so, these new advancements may affect you.  We recommend that you contact the Law Offices of Salar Atrizadeh to speak with an attorney who can explain your constitutional rights and help you plan for ways to protect you.


The Fifth Amendment establishes that the judicial system shall not require an individual to serve as "a witness against himself" in a criminal case. Case law has repeatedly confirmed that individuals are under no obligation to turn over any information that may incriminate them. However, for this privilege to apply, the information must be "testimonial."  Information is testimonial only if it reveals what someone knows. On the other hand, biometric information, such as a DNA sample, is not information someone knows. Therefore, it does not fall under the protection of the Fifth Amendment. This is important in the case of Apple's fingerprint technology because a fingerprint is more likely biometric information, which the Fifth Amendment does not protect. Alternatively, passwords tend to fall under the type of knowledge that the Fifth Amendment protects. As a result, if technology moves in a direction where fingerprints or voice and retina scans replace passwords, then individual protections contained under the Fifth Amendment may be jeopardized.  In general, a judge cannot compel an individual to turn over a password, which unlocks a device because it's information the individual knows.  However, a judge may have the authority to compel an individual to unlock a device using his fingerprint because it is constitutionally-unprotected biometric information.


Nevertheless, advanced technology may be able to avoid such legal consequences by offering users the option to either unlock their devices using a fingerprint or password. As such, the Fifth Amendment would protect the password, which is information the user knows (i.e., testimonial information) thereby allowing users to continue to enjoy their constitutional protection against self-incrimination.


At our law firm, we guide clients in legal matters involving business, technology, and constitutional rights by using our knowledge and skills to create innovative solutions. You may contact us today to set up a confidential consultation.

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