Virginia Judge Says Fifth Amendment Protects Passwords Not Fingerprints

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TouchID technology allows users to unlock their devices with a fingerprint. Jason Lee/Reuters

A Virginia Circuit Court judge issued a ruling on Thursday that people do not have to unlock their password-protected phone for the state's police, but that fingerprint-protected phones are a different story.

The ruling comes from the case of David Baust, an emergency medical services captain who was charged with trying to strangle his girlfriend in February. Prosecutors thought that video equipment located in his bedroom may have recorded the incident and wanted Baust to unlock his cellphone in case the video could be found there.

According toThe Virginian-Pilot, Judge Steven Frucci ruled that making suspects provide their passwords so police can snoop through their phones is a violation of the Fifth Amendment because it would force suspects to incriminate themselves. But in the same ruling, the presiding judge decided that demanding suspects to provide their fingerprints to unlock a TouchID phone is constitutional because it's similar to compelling DNA, handwriting or an actual key—all of which the law allows.

The Fifth Amendment states, "No person shall be compelled in any criminal case to be a witness against himself." As Wired notes, this applies to memory-based passwords that reflect what we know and remember and not biometric-based fingerprints that reflect who we are.

TouchID technology is a new feature, which can be found on some iPhone 5s, 6 and 6 Plus models, that allows users to unlock their devices with a fingerprint. With the proliferation of iPhones, it is not far-fetched to assume this form of authentication may become more widely used and could have unintended consequences.

Macie Pridgen, a spokeswoman for the Commonwealth's Attorney's Office, said prosecutors are considering an appeal.

Those considering switching to fingerprint protection may want to think twice.