In a recent video, Jeff Hampton talked about police authority, privacy rights and the use of biometrics to unlock phones. Hampton used the real-life case of Jeremy Payne to show the complexities of this issue and offered practical advice on protecting your personal information from unauthorized searches.
The Case of Jeremy Payne
In 2021, Jeremy Payne was pulled over by the highway patrol for having dark window tints. Payne was detained, and the officers used his thumb to unlock his phone without a warrant.
The Arrest
Inside, they found a video of Payne with blue pills, leading them to his home, where they discovered over 800 pills. Payne was arrested for possession with intent to distribute.
The Legal Landscape
Hampton explained that Payne’s case reached the Ninth Circuit Court of Appeals, which had to consider both Fourth and Fifth Amendment issues.
The focus of Hampton’s video was on the Fifth Amendment, specifically whether police can force you to provide biometric data to unlock your phone without a warrant. The court ruled that this was legal, comparing it to the routine collection of fingerprints during booking.
Fifth Amendment Implications
The Fifth Amendment protects against self-incrimination, stating that no one shall be compelled to be a witness against themselves in a criminal case. Payne argued that being forced to unlock his phone was a form of testimonial communication protected by the Fifth Amendment.
The Disagreement by the Judge
However, Judge Richard Tilman, who authored the opinion, disagreed. He stated that using Payne’s thumb to unlock the phone required no cognitive effort, likening it to providing a fingerprint or a blood sample, which are not considered testimonial acts under the Fifth Amendment.
Privacy Concerns
Hampton highlighted a critical privacy issue: modern cell phones store vast amounts of personal data, from travel history and banking information to text messages and call logs.
Warrant to Access
Forcing someone to unlock their phone without a warrant exposes all this information, which would otherwise require a warrant to access. Hampton added that this decision by the Ninth Circuit Court allows police to bypass the warrant requirement if they can access the phone using biometrics.
Testimonial Acts
The Supreme Court distinguishes between testimonial and nontestimonial acts. Testimonial acts involve revealing the contents of one’s mind, such as providing a passcode or password and are protected under the Fifth Amendment.
Non-Testimonial Acts
Non-testimonial acts, like providing a fingerprint or DNA sample, do not reveal such contents and are not protected. Hamptons shared that this distinction is crucial in understanding why using biometrics to unlock a phone is not considered a Fifth Amendment violation.
Protecting Your Phone
Given this legal backdrop, Hampton advised against using biometric locks on your phone. Instead, he recommends using passcodes or passwords, as these require conveying knowledge from your mind, thus providing Fifth Amendment protection.
He also suggested practical measures, such as keeping your phone out of sight during traffic stops to avoid police demands for access.
Practical Tips
Hampton offered a practical solution for iPhone users: Quickly pressing the power button five times brings up the emergency SOS menu, disabling biometrics and requiring a passcode for future unlocks.
Tips for Android Users
For Android users, he encouraged exploring similar features that can disable biometrics quickly. Another tip was to keep your phone in the center console during traffic stops. The police would need probable cause to search there.
Share Your Thoughts
So do you think law enforcement should be able to compel people to use biometric authentication to unlock their phones? Why or why not?
