A criminal defense attorney has gone viral with a TikTok warning people not to use fingerprints or Face ID to unlock their phones because the police may use it to search the device without permission. Legal experts say whether that’s true depends on how the jurisdiction interprets the Fourth and Fifth Amendments, which protect against unreasonable search and seizure and provide a privilege against self-incrimination, respectively.
Public defender Eliza Orlins began her TikTok by cautioning people to never consent to let police search their phones. Then she claimed they should “never” use fingerprint or Face ID either, because they don’t have a privacy right in their biometric data.
“This means that the cops can use your face or fingerprints to unlock your phone,” said Orlins, a former Survivor contestant. “But they cannot compel you to give a password. Because a password can be considered testimonial.”
Orlins’ TikTok has 1 million views as of this writing.
While many people thanked her for the advice, others intimated that the law is more complex than Orlins implies.
“If the cops use your biometrics to open your phone, they are still searching your phone without consent are they not?” wondered one.
Orlin didn’t respond to a request for comment posted on the TikTok.
Criminal defense attorneys caution people to never provide potential evidence to law enforcement, such as by giving police permission to search their phones. So in that regard, Orlins’ advice is sound.
However, many people took Orlins’ advice to mean that cops can simply search their phones just because it can be unlocked with their fingerprint or face. This isn’t entirely correct. Police are still required to either secure the owner’s consent or get a warrant before they can go through a phone.
In Riley v. California, the United States Supreme Court held, “The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”
Longtime Florida criminal defense attorney Teresa Sopp told the Daily Dot that the issue of whether police can legally compel someone to provide them with access to a locked device is “very complicated.”
“It depends on what password or platform one is trying to access,” Sopp wrote via Facebook messenger.
“It is probably better to use a password to ensure complete privacy because at least at this point no one can be ordered to give up their password and the companies can’t be ordered to do that either.”
So even if police get a warrant, they still may be unable to access the contents of a device. (They may also be able to circumvent the need for a password, face and/or fingerprint scan by serving a warrant to the cell phone carrier or using technology to break into the device.)
Even within the same state, there is some division between courts about whether a person can be compelled to provide police with their password.
In 2019, a Florida man was sentenced to nearly six months in jail for contempt of court because he refused to give up his password, the Tampa Bay Times reported. The Times said that he may have avoided jail time had he been arrested in another part of the state, because other state courts have held differently.
In 2020, a federal court in Nevada held that biometric data is afforded the same Fifth Amendment protections as a password, meaning that you can’t legally be compelled to provide it under the privilege against self-incrimination.
A 2021 article in the Brigham Young University Law Review thoroughly analyzed how courts interpret whether and to what extent the Constitution protects people from giving up access to their devices.
“In some jurisdictions, courts have addressed this issue and established protocol for how to constitutionally compel a suspect to unlock a phone,” the article stated. “In other jurisdictions, however, this issue remains unresolved, leaving law enforcement and prosecutors without clear guidance.”
Eventually the U.S. Supreme Court will likely rule on the matter. Until then, it may be best to heed Orlin’s advice.
“She is probably technically correct but it is honestly difficult to say,” Sopp said.