The End of the Bill of Rights is at Our Fingertips

English: Fingerprint detail on male finger. Če...
Fingerprint detail on male finger (Photo credit: Wikipedia)

I recently got my first “smart phone” (I’ve been a late adopter in that particular area of technology). One of the first things I noticed about it was that I could use my fingerprint, rather than a pesky pass code, to unlock it. Much more convenient, isn’t it? A password can be forgotten, but it takes pretty severe physical trauma to lose one’s fingerprint. If your hand gets cut off, your phone is the least of your worries, right?

Unfortunately, the convenience of “biometric” identification comes with a cost. When you take that route, at least two judges (first a Virginia circuit court judge and now a federal judge in California) have ruled, you can be forced to put your finger on the phone to unlock it.

This has serious and unfortunate implications for rights protected by the Fourth and Fifth Amendments to the US Constitution.

Fourth Amendment: Even when there’s a valid search warrant for a premises — or a phone — actually executing the warrant is law enforcement’s job, not yours. If the door is locked, they can break it down, but you don’t have to unlock it for them. If they find your hidden compartment full of evidence, they find it. But you don’t have to show them where it is, or even tell them that it exists. And that’s how it should be.

Fifth Amendment: Giving the police access to your phone is no different than telling them about every call you made, every text you sent, every note you wrote, etc. It is testifying against yourself, which you cannot constitutionally be required to do.

The usual response from proponents of unlimited state power  to such arguments is that the framers of the US Constitution couldn’t possibly have imagined a future of “smart phones,” unbreakable encryption, and so forth.

Maybe they’re right. But what the framers COULD imagine was the possibility that the Constitution would require occasional amendments to keep up with changing times. Those who want to repeal the Fourth and Fifth Amendments have clear instructions for doing so. All they need is the support of two thirds of both houses of Congress and ratification by three quarters of the states’ legislatures. A high bar, but not at all unclear.

Until and unless that happens — and it won’t — resist much, obey little. And secure your phone with a long and complex pass code, not with your fingerprint.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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Also published on Medium.

  • What kind of phone did you get? I have an Alcatel OneTouch that the wife bought at Target for something like $19 or $29.00. I’m kind of underwhelmed with its smartness and would be pissed if I’d paid the close to hundred dollars I was planning on paying if I still had the same problems.

    Still, it does work and, unlike my laptop, connects to wifi networks with no effort on my part. The most important thing is it keeps me entertained when I’m in the hospital.

    • I was very fortunate that one of the places I work for wanted me to have a smart phone (so I can do stuff when on the road), and buys its people phones through its carrier’s plan — which means it’s all the big brand stuff.

      I had my choice between Apple iPhone and Samsung Galaxy. I chose the Samsung Galaxy S6, the next-to-newest model (I didn’t want to get a really old one because I want it to be non-obsolete for several years, but didn’t feel the need for the brand new S7). I blanched when I looked at the open market price. I’m not sure what the price of mine was since it was part of a group plan.

      My S6 has varying levels of security, ranging from “swipe the screen to unlock,” to “swipe a shape you’ve previously put in to unlock” to password to fingerprint. I’ve been messing with all of them at home; I agree that putting in a password every time the phone goes dark is a pain. When I travel, I will definitely use the passphrase or some complex swiping shape (haven’t researched that to see if the swiping can be complex enough to make it difficult).

      • That works out good. I know a couple people that weasled their way into family/group plans. They had to buy the phone (one cost $200+-) but monthy costs are around $10.00 for unlimited everything, or so they’ve told me.

        I’m with Tracfone and pay less than $10 a month just to stay connected. I was thinking of buying the same phone thru Tracfone for over $80.00, so am glad the wife found one much cheaper at Target. As I already wrote, I’d be pissed if I paid $100+- for a phone as prone to glitches as this one is. I guess the -high end Samsungs cost $500+-. Too much for me to even consider.

        • Yeah, I was using a $10 flip phone and Tracfone — never used it for the Internet and didn’t use it as PHONE a whole lot — more an “I’m out and about and need to make a call,” or loaning it to my daughter for same, so I spent only $20 every three months to keep it active.

    • Socrates Wilde

      Fred, my Alcatel broke down after a year.It was a replacement for my TacFone necessitated by my job. I replaced it with a ZTE Max that is functioning, but underwhelming. I should’ve picked aup a Samsung when I had the chance.

      • Yeah. I’ve had this one for a month or two and the on/off button is already getting sticky. With all the other glitches the phone has, I’d be surprised if the phone lasts all that much longer.

        I can’t afford hundreds for a Samsung. I still have my old LG flip phone and it works better for some things than my Alcatel. I can always go back to that one, although it doesn’t have good internet access. It has a browser, but the screen is so small it’s really hard to see things.

        • Socrates Wilde

          I had enough cash to buy a Samsung at one point, but I got cold feet. I regret it now.

          Some prividers offer special monthly charges along with a Samsung. But you would need to be in the credit system to take advantage. I’m no longer in it.

  • Oh, and that password thing: I put one on mine at the urging of the phone and against my better judgment. Now I have to type in the password to even answer the phone. I don’t see anything to allow fingerprint use, although I’m not sure that would be much quicker. Knew I shouldn’t have bothered with a password, but too late now.

    • In your security settings, you should be able to tell it to stop requiring password.

      The fingerprint thing is a lot quicker. You put your finger on the home button and hold it down for a couple of seconds, and you’re done. It does take several minutes to set up because it wants to take a bazillion scans of your fingerprint — presumably so that one bad scan doesn’t lock up your phone. You can also add more than one fingerprint. Probably smart, in case you lose a finger.

      • I’ll have to look and see if I can find that.

        • It may not have it. I’m sure lots of phones don’t, and it probably adds to the price considerably. Coming next, probably: Retina scans.

  • JdL

    The usual response from proponents of unlimited state power to such arguments is that the framers of the US Constitution couldn’t possibly have imagined a future of “smart phones,” unbreakable encryption, and so forth.

    What they could imagine, and apparently did imagine, was that people have the right to take whatever measures they have available to safeguard their privacy, and (as you say above) never be forced to help the government invade that privacy. So the fact that the framers weren’t omniscient is irrelevant: the boundary between private rights and government rights has not moved because of technology, and will not move as a result of future technologies.

    • Good point — and maybe I should have taken it in that direction instead of going the “there’s a process for amending the Constitution and it doesn’t include judges” route. My content calls are far from always right!

      • JdL

        Of course, the people who want to restrict privacy would disagree, and in that context, your “put up or shut up” statement is right on target.

  • Delaney Coffer

    What they need to create is some sort of self-destruct macro that the user can initiate when threated with unlawful s&s. The simplest would be a 6 digit password that erases the phone. It would be an awful lot like the one that unlocks it …except different.

    • I suspect there’s software out there like that. Haven’t ever looked into it. Of course some dumbfucks would be accidentally erasing their stuff. And then blaming the maker of the tool that let them do so.

      • Delaney Coffer

        If I ever hit my thumb with my hammer, I’m gonna sue the shit out of Estwing like I did when I chopped my trans-curious friend’s dick off when I was trying out one of their hatchets. Fucking lawyers.

  • timothytaylor

    “And secure your phone with a long and complex pass code, not with your fingerprint.”

    Yes, but the Judge can force you to reveal it and sent you to jail until you do.

    • Yep But that’s a bridge to cross or burn when we get to it.

      It’s sort of the difference between being required to leave your keys in your car ignition, or having someone demand that you hand them over. The latter may not be BETTER per se, but it does at least put one more layer between you and the likelihood of your car getting stolen.

    • Delaney Coffer

      Not if you forgot it.

  • Speaking of android units, thought I’d mention this Trio Axs tablet my sister bought me as a gift. Not necessarily a recommendation, just a mention. It’s just a tablet that uses the android system and I loved it.. .while it was working. Like a mini computer, easy to carry around and use. Unfortunately, the second time I needed to use it for any length of time, it died. The touch screen seemed to stop responding and it wouldn’t seem to boot up.

    My sister bought in on Home Shopping Network for $125.00. or thereabouts. It doesn’t look like they carry it anymore, probably because of all the poor reviews. I gave it a good one while it was still working, but now would probably echo the others that it simply stopped working. If they could ever get that thing more reliable, I’d buy another one. I loved that thing when it worked.
    Amazon has them, albeit pricier than my sister paid:
    http://www.cnet.com/news/walmart-and-t-mobile-to-offer-tablets-with-free-data-plans/