Rethinking Fingerprints under the Fifth Amendment

Kyle J. O’Brien

In today’s technological world, securing your data is paramount. Apple and Google, among others, spend millions inventing security measures to protect the data on our devices from unauthorized users. Recently, they implemented fingerprint-based security, which became instantly popular and widely used. However, while embraced as a security measure, according to Commonwealth v. Baust, using fingerprint-based security negates your constitutional right against self-incrimination. 89 Va. Cir. 267 (2014). But, as I explain here, it makes more sense that a fingerprint—used in lieu of a passcode or password—is testimonial and should be protected by the Fifth Amendment.

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