President Obama’s recent smart gun push has brought renewed attention to one of the only aspects of the firearms industry that has not enjoyed substantial popularity throughout his presidency. In January, he issued a Presidential Memorandum instructing the Departments of Justice, Defense, and Homeland Security to produce a strategy to expedite the development of smart gun technology. Last month, the White House released the strategy, which entices manufacturers with a promise to provide financial incentives to help sell smart guns to federal agencies and state law enforcement agencies.
A “smart” gun is a firearm that incorporates a safety feature that only permits its authorized user(s) to fire it. Many variations of smart guns require an authorized user’s fingerprint to unlock and fire the gun. Others use biometric sensors that detect hand size and grip.
Some Americans may find smart guns appealing. Imagine parents who do not fully trust their ability to keep their firearms out of the reach of their children; a resident of a high-crime area worried that her firearm could be stolen and used undesirably; or really anyone who believes there is a substantial likelihood that his firearm could be misused.
Nonetheless, there is virtually no market for smart guns (which is why the government had to take it upon itself to fund and promote the advancement of smart gun technology). Consumers have complained that smart guns are frangible, prohibitively expensive, excessively complex, and dangerously unreliable. These consumers have demonstrated that when their lives are on the line, it is simplicity and reliability they demand—and that a substantial risk of malfunction is entirely unacceptable for a life-preserving instrument. (This, even President Obama must agree with, as none of his Secret Service agents use the smart guns he promotes for average citizens.)
Further, Americans are wary of smart guns, because gun control advocates have revealed their desire to ban all non-smart guns as smart guns become increasingly available. This effort has stigmatized smart gun technology and diminished whatever meager demand ever existed for such arms.
As courts have started wrestling with security issues related to smart phones, another potential concern has emerged: The Fifth Amendment implications of smart guns.
The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend V. This is commonly referred to as the “self-incrimination clause.” It is applicable to the states through the Due Process Clause of the Fourteenth Amendment. “The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement—the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will.” Malloy v. Hogan, 378 U.S. 1, 8 (1964).
The Fifth Amendment’s protection against self-incrimination is limited though. “The privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.” Schmerber v. California, 384 U.S. 757, 761 (1966). It “offers no protection against compulsion to submit to fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture” because “[n]one of these activities becomes testimonial within the scope of the privilege.” United States v. Wade, 388 U.S. 218, 223 (1967) (emphasis added).
The Supreme Court has long held that the protection against self-incrimination does not extend to evidence obtained from the exhibition of one’s person. “The prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.” Holt v. United States, 218 U.S. 245, 252-53 (1910). Consequently, the Fifth Amendment does not prevent a person from being compelled to submit fingerprints.
As applied to smart phones, courts have determined that the Fifth Amendment prevents a person from being compelled to enter a password to unlock a phone, but that it does not prevent a person from being compelled to use his fingerprint to unlock a phone.
In Com. v. Baust, 89 Va. Cir. 267 (2014), the Commonwealth of Virginia wanted to obtain a video it believed to be on the defendant’s smart phone, either by compelling the production of the passcode or fingerprint needed to access the phone. The court held that “the defendant cannot be compelled to produce his passcode to access his smart phone but he can be compelled to produce his fingerprint to do the same.” The distinction between the passcode and the fingerprint was that the passcode was testimonial, but the fingerprint was not. (To be protected by the Fifth Amendment, something must be (1) compelled; (2) testimonial communication; and (3) incriminating.) The court explained:
Defendant cannot be compelled to “divulge through his mental processes” the passcode for entry. The fingerprint, like a key, however, does not require the witness to divulge anything through his mental processes. On the contrary, like physical characteristics that are non-testimonial, the fingerprint of Defendant if used to access his phone is likewise non-testimonial and does not require Defendant to “communicate any knowledge” at all. Unlike the production of physical characteristic evidence, such as a fingerprint, the production of a password forces the Defendant to “disclose the contents of his own mind.” For this reason the motion to compel the passcode should be DENIED but the motion to compel the fingerprint should be GRANTED.
Id. at 271.
In March of this year, a federal judge in California issued a warrant permitting the FBI to compel the girlfriend of an alleged gang member to use her fingerprint to unlock a smart phone. Specifically, the warrant stated that, “Law enforcement personnel are authorized to depress the fingerprints and/or thumbprints of the person covered by this warrant onto the Touch ID sensor of the Apple iPhone.”
While this all provides good reason to lock a smart phone with a passcode rather than a biometric identifier, it also provides an additional reason to be wary of smart guns. It follows from the above-mentioned cases that a person can be compelled to “depress the fingerprints and/or thumbprints of the person…onto the Touch ID sensor of” a smart gun. After all, if one can be forced to use his finger to unlock a smart phone, why could one not also be forced to use his finger to see if it unlocks a smart gun?
If this is the case, smart guns would, in effect, provide the government with a constitutionally permissible method of compelling people to incriminate themselves. The government could not force a person to admit that he is the authorized user of a particular smart gun, but that hardly matters if the government could force a person to demonstrate that he is the authorized user of a particular smart gun.
In addition to making it easier for the government to force a confession, being able to compel a defendant to prove that he is the authorized user of a smart gun could lead to a wrongful conviction—especially because criminal cases involving smart guns could foreseeably be reduced to whether the defendant was able to unlock the smart gun when compelled to do so. Imagine a scenario in which a malfunction of the smart gun allows an unauthorized user to fire it, but the wrongfully accused owner is compelled to prove that he is in fact the gun’s authorized user.
This is especially concerning considering how unsecure modern technology is. Computers, phones, security systems, and databases are all frequently hacked. Just last year, the fingerprints of 5.6 million federal employees were stolen when the United States government was hacked. Imagine a scenario in which a smart gun is hacked and used in a crime, and the true owner is put on trial. If only one person is programmed as an authorized user of the smart gun and the government compels the defendant to demonstrate that he is that authorized user, the “my smart gun was hacked” defense would make for a difficult sell.
This all becomes more worrisome when considered in conjunction with the limited Fourth Amendment protections afforded fingerprints. A properly seized person can be fingerprinted without violating the Fourth Amendment, and the Supreme Court has even indicated that the Fourth Amendment may permit “narrowly circumscribed procedures for obtaining, during the course of a criminal investigation, the fingerprints of individuals for whom there is no probable cause to arrest.” Davis v. Mississippi, 394 U.S. 721, 728 (1969). It seems that the possibility cannot be ruled out that some circumstances may permit law enforcement to compel someone to try to unlock a smart gun without so much as probable cause.
These potential issues should give pause to anyone considering a smart gun. If courts treat smart guns the same as smart phones, then smart guns would allow for substantially greater intrusions on the rights of private citizens than traditional firearms do. The self-incrimination clause was designed to protect against forced confessions, and the owners of smart guns would be sacrificing much of that protection. Smart gun owners would also have to put tremendous faith in the technology’s ability to prevent unauthorized uses and security breaches, either of which could result in a wrongful conviction. Considering that Americans have overwhelmingly refused to place their fate in the undependability of smart guns when their lives hang in the balance, it seems unlikely that Americans would want to place their fate in the undependability of smart guns when their innocence hangs in the balance.