Biometric Access and “Compelled Unlocking”
The court’s Valdez decision relates to “compelled disclosure” of a passcode. But the court hinted at what may be a simple work-around for law enforcement: Why can’t investigators simply “obtain[] an order to compel the suspect to provide an unlocked device”? In practice, that has already happened. “Law enforcement has quickly pivoted,” explains Ferdose al-Taie, Dallas, TX, cochair of the ABA Litigation Section’s White Collar & Criminal Litigation Committee. “Many search warrants already contain language that allows for refusal of testimonial communications.”
The Valdez decision also expressly avoids the question of biometric access, including fingerprint or facial identification. “Many people would instinctually believe that biometric access provides better protection for your data than a passcode. But from a legal perspective, when the issue is which of those methods is testimonial, that may not actually be the case,” al-Taie notes. In any event, questions of “compelled unlocking” and biometric access are similarly mired in state-court splits. Further complicating matters is the “foregone conclusion” exception to the Fifth Amendment privilege against self-incrimination, on which high courts in Utah and Massachusetts have now parted ways. As of today, the U.S. Supreme Court has not yet taken an opportunity to resolve those splits.
Privacy Disputes, White-Collar Investigations, and Beyond
“Many practitioners, prosecutors and defense counsel both, would welcome clarification on this issue,” al-Taie suggests. The implications of cases like Valdez, however, go well beyond the criminal-law context. “On the privacy-rights side,” al-Taie explains, “many companies provide cell phones, and employees store both company and personal information on the same device. How much access to an employee’s cell phone could a company lawfully give investigators? Many would love to have a workable standard to help answer that question.”
The sheer volume of information on cell phones means that compelled access issues will arise in myriad types of cases. “Cell phones contain so much information,” echoes Benjamin Reese, Columbus, OH, a member of the Litigation Section and its Young Lawyers Division. “Device issues appear in almost every white-collar case. And investigators often seek this information directly from the subject of the investigation.”
The fact that Valdez arises in a violent crime context does not make it any less applicable to white collar or government investigation cases, Reese explains. “Riley v. California started with a traffic stop and a weapons charge arrest, and Carpenter v. U.S. was a robbery case. But those cases reach device-access disputes in white collar cases every day.”
The State of Utah has asked the U.S. Supreme Court to use the Valdez case to provide clarity of device-access issues. “The Supreme Court could use the Valdez case as the vehicle to craft an analytical framework to address this issue,” explains Katayoun Donnelly, Denver, CO, cochair of the Pro Bono & Professional Opportunities Subcommittee of the Section’s Appellate Practice Committee. “Such a framework would have to account for the complexity and rapid advancement of encryption technologies while balancing defendants’ constitutional rights against the government’s public safety interests,” Donnelly suggests.