The Fifth Amendment protects an individual against self-incrimination, but laws may be changing due to certain technology access by the courts.
Smartphone Technology and Self-Incrimination
Advanced technology found in smartphones and laptops provides personal protection features for users, but certain conditions may provide only limited protection in a court of law. Passwords and personal identity features may be challenged in criminal cases where important evidence may be located on a person’s phone or computer.
Typically, an individual is protected from self-incrimination by Fifth Amendment rights. He/she is not required to admit to a crime or take the stand in a criminal case, unless the case goes to the federal grand jury. In most cases, a person charged with a crime is advised by his/her criminal law attorney to remain silent to avoid self-incrimination and possible indictment. If a defendant takes the stand voluntarily, he/she may waive the protections provided by the Fifth Amendment, because a judge can demand answers to certain questions.
Over the last few years, the increasing use of smart technology in cell phones and computers has raised questions about search-and-seizure laws when collecting evidence. Since 7 out of 10 people now use smartphones and laptops, password protection features are under scrutiny by criminal courts.
To sell more cell phones and computers, technology companies are enticing users with convenient features and extra security. The latest smartphones and laptops can now be protected from security breaches by entering a personal password or scanning a physical feature. These password protections may change a person’s rights under the Fifth Amendment.
Courts look at violation of privacy rights when obtaining evidence. A defendant may be required by law to provide a physical piece of evidence, but no evidence that is stored mentally. For this reason, smartphone users who unlock their phones or laptops with personal passwords only known to themselves may be protected from sharing the password in a court of law based on Fifth Amendment rights.
Smartphone users who rely on their physical features, known as biometric passwords, to unlock their devices may not be protected under Fifth Amendment rights. Since a fingerprint or retina image is a physical feature that a person has, not something that a person knows, the user may be required to unlock his/her devices and turn over evidence to the court. Biometric passwords are likened to the physical evidence that may be freely collected by law.