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Chief Justice Roberts remarked in 2014 that modern cell phones are “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” The ubiquity of cell phones and other digital devices persists, as ongoing technological developments work to safeguard data security. Apple, Samsung, and Huawei devices use biometric prompts like Touch ID (fingerprint recognition), Face ID (facial recognition), or Optic ID (iris recognition) to authenticate a user’s identity, while others employ patterns or PIN numbers to unlock devices, make purchases, and access sensitive data.

These technologies pose challenges by pitting against each other the interests of law enforcement and the right against self-incrimination. In the past year, two circuits have reached conflicting decisions, and district courts have issued diverse holdings on this issue. This article discusses Fifth Amendment concerns in the context of compelled disclosure of biometrics, an issue ripe for Supreme Court review.

The Fifth Amendment & the Act of Production Doctrine

The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” The privilege against self-incrimination extends beyond “answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute . . . [an individual] for a federal crime.” To assert the privilege against self-incrimination, a witness must show that information is: (1) compelled, (2) incriminating, and (3) testimonial. A statement is considered “testimonial” when an accused’s “communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” The government may not compel a witness “to use the contents of his own mind” to communicate something factual because doing so is equivalent to testimony and is barred by the Fifth Amendment.

There are certain communications or acts that are not considered testimonial even if incriminating. For example, “a suspect may be compelled to furnish a blood sample; to provide a handwriting exemplar, or a voice exemplar; to stand in a lineup; and to wear particular clothing.”

The act-of-production doctrine recognizes that although “the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence,” it does apply “when the accused is compelled to make a testimonial communication that is incriminating.” The Supreme Court has held that the “act of producing evidence in response to a subpoena . . . has communicative aspects of its own, wholly aside from the contents of the papers produced.” And the Supreme Court has observed that the “more difficult issues are whether the tacit averments of the [individual] are both ‘testimonial’ and ‘incriminating’ for purposes of applying the Fifth Amendment. These questions perhaps do not lend themselves to categorical answers; their resolution may instead depend on the facts and circumstances of particular cases . . . .” Requiring individuals to reveal biometric data is a complex matter that hinges on the act-of-production doctrine.

The Conflict Between the Ninth and D.C. Circuits

Last year, in United States v. Payne (9th Cir. 2024), the defendant argued that police officers violated his Fifth Amendment right against self-incrimination when they compelled him to unlock his phone with his fingerprint. During a traffic stop, Payne was arrested and compelled to unlock his phone for officers. During legal proceedings, the government conceded that Payne satisfied the first two prongs for Fifth Amendment protection—that the use of his fingerprint was compelled and incriminating—but it disagreed it was testimonial. The Ninth Circuit explained that a testimonial communication requires some factual assertion or disclosure of information to trigger the privilege, but that here, Payne said nothing after his fingerprint was used to unlock his phone. Thus, the Ninth Circuit found the use of Payne’s fingerprint required no cognitive exertion and was more like a compelled fingerprinting or blood draw, which courts have held are non-testimonial acts that do not receive Fifth Amendment protection. Accordingly, the Ninth Circuit affirmed the district court’s ruling and denied Payne’s motion to suppress information obtained from his phone at the time of his arrest.

Several district courts reached the same conclusion as Payne: that an arrestee unlocking her or his phone with biometrics is non-testimonial, even if it is compelled and even if it provides access to incriminating information.

The issue resurfaced again this past January in United States v. Brown, but the D.C. Circuit reached an opposite conclusion. Schwartz, a co-defendant with defendants Brown and Maly, argued that FBI officers violated his Fifth Amendment rights when the arresting agent found a black phone in his bedroom and compelled Schwartz to unlock it via his fingerprint. As in Payne, Schwartz moved to suppress the evidence obtained from his phone. All the parties agreed that the unlocking of the phone via fingerprint was compelled and incriminating, but the parties disagreed about whether the act of unlocking the phone itself was testimonial. The D.C. Circuit held that unlocking a phone with biometrics is different than submitting to a blood draw or handwriting test.

The court highlighted a commonsense point: most people who use biometrics to unlock their phone usually set only one or two of their ten possible fingerprints as “passwords.” The court noted that among the physical trait cases, which are context dependent, some physical responses like the heart beating faster or sweating during a compelled lie detector test are testimonial. In reviewing the denial of Schwartz’s motion to suppress, the court reasoned that compelling Schwartz to open his phone with his fingerprint reflected his thoughts and knowledge on: “how to open the phone,” “[his] control over access to this phone,” and “the print of this specific finger is the password to this phone.” The court thus found Schwartz’s Fifth Amendment rights were violated.

Like the Ninth Circuit, the D.C. Circuit also reviewed act-of-production cases, but the courts diverged on whether using a fingerprint to unlock a phone reflected extensive cognitive thought. The D.C. Circuit reasoned that when the FBI agent compelled Schwartz to unlock the phone with his fingerprint, Schwartz demonstrated not only his ownership and control over the phone, but also his ownership of the data accessible within it. The Ninth Circuit in Payne saw no cognitive exertion in the same compelled physical act.

Fifth Amendment Forecast

Several district courts reached the same holding as the D.C. Circuit, which shows how unsettled this area of law is.

 Several years ago, in In re Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, the accused was served with a subpoena duces tecum requiring him to produce the unencrypted contents located on the hard drives of his laptop computer and five external hard drives. In responding to the show cause order, Doe informed the court that he invoked his Fifth Amendment privilege against self-incrimination and refused to comply with the subpoena before the grand jury. To circumvent the constitutional rights issue, the government requested an order, which the court entered, that “convey[ed] immunity for the act of production of the unencrypted drives, but [did] not convey immunity regarding the United States’ [derivative] use” of the decrypted contents of the drives. Doe persisted, and the court found him in civil contempt. The Eleventh Circuit reversed because Doe’s act of production would have testimonial aspects to it, and the government’s offer of act-of-production immunity clearly could not provide the requisite protection because it would allow the government to use evidence derived from the immunized testimony. Doe could not be compelled to decrypt the drives.

The issue may be less complicated with facial or fingerprint recognition, but the Eleventh Circuit decision provides guidance for situations in which a device can only be accessed if the accused discloses a particular pattern or PIN. Such scenarios should have greater testimonial weight, since the government is compelling what is contained in the accused’s mind, which is akin to compelling an accused to provide the combination to a safe with incriminating information in it. On the other hand, the Supreme Court has held that compelled provision of voice exemplars does not violate the Fifth Amendment since they are used “solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said.” But if a voice exemplar is compelled as entry for access to a device, akin to a password, it is likely that such a compulsion would be held to be testimonial under the reasoning in Brown.

For several years, federal district courts have wrestled with the implications of federal agents compelling arrestees to unlock their phones using biometrics. The conflicting rulings on similar facts by the Ninth Circuit and D.C. Circuit brings the issues into greater relief. It surely will lead to additional splits among other courts on the compelled use of biometrics to obtain data. Even the tribunals for the armed forces are interested in the outcome of this circuit split. In March, the United States Army Court of Criminal Appeals cited Brown in its decision affirming the suppression of the contents of a phone seized by the Army Criminal Investigation Division. Although the decisions mainly focused on military codes and rules, the court stated that it found the ruling in Brown persuasive in reaching its decision. The Supreme Court will likely have occasion to decide these issues in the near future. When it takes up these issues, the Supreme Court will likely rule on the case in manner that goes beyond whether the arrestee is a parolee and whether the arrestee voluntarily used their fingerprint or if it was forcefully used. Either way, a clean ruling will bring uniformity to how compelled biometrics should be treated under the Constitution.

Disclaimer: The authors are white collar defense attorneys at Womble Bond Dickinson (US) LLP.