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Can police require you to use Apple Face ID to open your phone?

It's hard to imagine. Suppose you were arrested under suspicion of buying or selling drugs. The police might want to search the contents of your cellphone for evidence of the deal. Even if they obtained a search warrant, however, they might run into a new technological barrier in the form of Apple's Face ID.

Face ID allows the owner of an Apple device with iOS 11 to unlock the phone merely by looking at it. Once the recognized owner looks away, the phone locks back up.

According to an interesting story in the Atlantic Monthly, the phone uses 30,000 infrared points on the user's face to recognize its owner. Apple says a picture or even a mask of the owner's face will not unlock the phone. In fact, since the user has to be looking at the phone for it to unlock, holding the phone up to its sleeping owner's face will not unlock it.

That sounds like good security, but what about situations where police want to access the contents of the phone? Could they require the owner to unlock the phone using Face ID? If so, would the owner have to assist the police with the search, since the phone would lock back up when the owner looked away?

Legally, it's hard to say whether the police could require a phone's owner to unlock it in this way. Practically, it's hard to imagine a court ordering a suspect to unlock the phone and keep it unlocked while the police searched it.

The main legal issue is whether requiring the user to unlock with Face ID could violate the Fifth Amendment's protection against self-incrimination. In past rulings, courts have held that the Fifth Amendment doesn't protect people from the police using their physical attributes to collect evidence. For example, courts have ruled that the use of DNA evidence doesn't violate the Fifth Amendment. However, some courts have held that forcing a suspect to turn over a password or PIN does violate the right to avoid self-incrimination.

Another possible legal issue is the application of the Fourth Amendment's protections against unreasonable searches and seizures. These protections could apply to a search of the contents of a phone, but they might also apply to any requirement that the suspect cooperate with the use of Face ID, especially if the suspect had to remain in police custody while the phone was exhaustively searched.

Whenever dramatic new technology arrives on the scene, courts may be required to apply court rulings that didn't take that new technology into account. Often enough, this means that the question of how the new technology changes things must be decided by trial courts on a case-by-case basis.

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