Passcode vs. Touch ID: A Legal Analysis (9TO5MAC)
With the suspect in handcuffs, the agent swipes the student’s finger across the phone to access his call history and messages. Once the FBI swipes the suspect’s finger and bypasses the biometric security, the phone asks for the student’s passcode. The FBI agent asks for his password but the student refuses to speak. How can the FBI agent access the phone? Whereas a fictional Federal Agent like Jack Bauer would simply pull out his gun, jam it in the suspect’s mouth and scream, “WHERE IS THE BOMB?”, in our example, the FBI agent would hit the proverbial brick wall.
This is where a gray area might still exist for hardware protected with voice biometrics.
I’m no criminal or constitutional lawyer, but it seems plausible that while a criminal suspect can be legally compelled to give over their fingerprint, the “right to remain silent” remains.
Commonwealth v. Baust probably isn’t the last word on all biometric modalities that could prove useful in criminal investigations.