Facial Recognition, Biometric Identification, and the Fifth Amendment

Apple just introduced the iPhone X, a new high-end smartphone. The phone can be unlocked using facial recognition, just as current iPhones can be unlocked using a fingerprint scanner. According to Forbes, the phone “uses a combination of light projectors and sensors to take several images of your facial features,” then compares the face of a person seeking to unlock the phone to the “depth map” it has created. I wrote here and here about the Fifth Amendment implications of fingerprint scanners. The few courts that have addressed the issue have mostly agreed that a suspect can’t be required to provide the passcode to a phone, absent unusual circumstances, because that would violate the Fifth Amendment’s privilege against self-incrimination. However, courts mostly have held that a suspect may be ordered to press a finger to the phone because doing so is not “testimonial” and so is outside the scope of the privilege. I thought that this would be a good time to consider facial recognition and the Fifth Amendment, and to provide an update on a recent case that reaches a different result than most other decisions to date. Facial recognition is analytically similar to fingerprint identification. Neither one requires the suspect to say or do anything volitional, so I can’t think of a meaningful legal distinction between the two. The same analysis would apply to other biometric identification technologies, such as the iris scanners used in some Windows computers or more exotic options like earlobe geometry and vein matching. There [...]