In a decision uncovered by Forbes, a California judge has issued a new ruling in how law enforcement is allowed to use, or not use, a suspect’s biometric features. In denying a police search warrant, Judge Kandis Westmore ruled that biometrics are the same as passwords, diverging from previous rulings on the subject.
Prior to Westmore’s decision, there was a significant difference between text-based passwords and biometrics like fingerprints or facial mapping used to unlock phones. A suspect could not be compelled to give up their password, but police could unlock their devices using their fingerprints or face because those were generally not considered testimony, in the legal sense. They are often considered similar to physical evidence found at the scene. That’s why, for instance, people who anticipate getting arrested at protests are advised to turn off biometric unlocks on their phones.
“If a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device,” she wrote. The decision came in the form of denying a police search warrant that requested permission to open any phone on the premises with biometrics.
The decision could be overturned, but at the very least it indicates how more and more judges are beginning to think of digital privacy on its own terms instead of working it into a framework of the physical world. As Westmore wrote in her decision, “technology is outpacing the law.”