Face ID: A Technological Advancement and a New Legal Battle

By: Christopher McIlveen

On September 12, 2017, Apple unveiled what they proclaim to be the greatest leap in the advancement of the smartphone since Steve Jobs introduced the original iPhone. However, throughout the grandiose flaunting of the new features such as improved cameras and the ability to project oneself as an animated poop emoji, the new iPhone X poses a unique legal dilemma yet to be addressed in the courts.

Apple’s original innovation in the smartphone market of security was a slide to unlock feature, followed by the security feature of entering a user generated pin. However, this changed over time with the advancement of the technology in the iPhone. The iPhone improved from slide to unlock to the famous Touch ID fingerprint scanning, which brought with it a whole new realm of legal problems and implications under the Fifth Amendment.

Throughout its existence, Apple’s security measures have withstood the test of time as court cases have secured the protection status of a digital pin. Citizens derive their protection through the Fifth Amendment in which people cannot be compelled to testify against themselves. The progression of Apple’s devices lead to Touch ID, a feature that functioned as a fingerprint scanner that would unlock one’s smartphone. This feature, while undeniably a more convenient way of unlocking a phone, put Apple’s protection measures at risk. The Touch ID feature does not give the same protection under the Fifth Amendment as a pin. Nevertheless, Touch ID is still protected under the Fifth Amendment in which police cannot force someone to use their finger to unlock their phone, as this would force one to give evidence against themselves, circumventing their Fifth Amendment rights. Apple, with a desire to stay ahead in the smartphone market and building upon its convenience features, has now unveiled their newest addition, the Face ID feature, which further risks their user’s protection under the Fifth Amendment.

This new high tech feature poses a unique problem for Apple users. A pin is a user-generated protection and a fingerprint requires physically engaging with the device. However, with Face ID, one walks around daily with their password in plain view of everyone. Unlocking the new iPhone with Face ID simply requires glancing at the phone, providing the unique facial recognition password that is required, and swiping up. It is quite clear that this type of feature leaves room for exploitation. Will the police be able to unlock someone’s phone to retrieve evidence by holding it in front of their face? These questions have already raised concern from Apple’s critics and even their more cautious users. To their credit, Apple has implemented a shortcut to disable Face ID, carried out by holding down the left and right side buttons on the device. This reverts the phone’s unlocking method to the pin entry backup. However, most users will not know about this feature, let alone have the opportunity or even the chance to remember to do it if the need arises. Regardless of this major step in technological advancement for a smartphone, there will still be some users opting to disable Face ID to simply use the old and trusty user generated pin.

There may yet be hope for Apple’s innovative unlocking feature. The Supreme Court held that while police can search without a warrant in an effort to protect an officer and preserve evidence, they cannot do so for digital data. With this holding, Apple may have hope for the future of Face ID. While it is uncertain, the future is relatively safe in that the police do not have the right to seize an iPhone without warrant, and thus cannot access a protected phone.

Cites:

Apple, iPhone X, https://www.apple.com/iphone-x/ (last visited Sept. 18, 2017).

U.S. Const. amend. V.

Riley v California, 134 S.Ct. 2473 (2014).

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