Investopedia | Samsung's Galaxy 8 Could Endanger Fifth Amendment Rights ... Investopedia Fifth Amendment rights, which protect citizens from incriminating themselves in court cases, may be in danger thanks to Samsung Electronics Co. Ltd's (SSNLF) ... Experts: Fifth amendment questions raised by Samsung Galaxy's face recognition |
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Samsung's Galaxy 8 Could Endanger Fifth Amendment Rights ... - Investopedia
The iris scanner and facial recognition features of the Galaxy S8 and the Galaxy S8 Plus arent protected under the Fifth Amendment, industry experts are reminding consumers just weeks before Samsungs upcoming pair of Android flagships officially hits the market. The Fifth Amendment that protects against self-incrimination by allowing people the right not to testify against themselves in acase when doing so would criminally implicate them has previously extended to both passwords and passcodes, as providing either was defined as giving testimonial evidence, i.e. evidence that consists of ones thoughts. This protection technically doesnt apply to any kind of physical evidence like fingerprints, as several previous cases have already shown, but it also doesnt extend to devices that can be unlocked with an iris scanner or facial recognition.
Both iris scanning and facial recognition rely on certain physical features that courts can and do categorize as physical evidence, meaning e.g. you cannot refuse to unlock your smartphone by pleading the fifth if a police officer can simply hold the phone up to your face and let it unlock. While some privacy advocates previously argued such search isnt legal, a precedent on the matter has yet to be made and courts seemingly agree that a scenario in which an officer holds a phone up to someones face isnt defined as a testimonial act as it doesnt require the suspect to share any contents of their thoughts.
There are certain exceptions to the rule outlined above, legal experts explain, noting how most exceptions pertain to scenarios in which authorities arent certain who owns the device theyre looking to unlock with an iris scanner or facial recognition. While looking at your phone to unlock it in front of officers isnt a testimonial act, claiming ownership of a device certainly is, meaning youre not required to do so if authorities arent certain who owns the smartphone theyre seeking to unlock. Overall, if youre planning to acquire the Galaxy S8, Galaxy S8 Plus, or any other upcoming smartphone boasting biometric authentication, keep in mind you might want to stick with a regular password, pattern, or a passcode if youre adamant to not let authorities access your device under any conditions.
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Galaxy S8 Face Recognition Isn't Protected By 5th Amendment - Android Headlines
Last week, Samsung announced that its Galaxy S8 phone would let you unlock it by scanning your face a method that could be quicker and simpler than entering a passcode or even using a thumbprint. As we noted at the time, this isnt a strong security measure; in fact, someone already fooled it with a photograph. But theres another, less-obvious issue: one key Constitutional protection for passwords usually doesnt apply to biometric security measures like face scanning.
The Fifth Amendment, which protects people from having to incriminate themselves, holds that passwords or passcodes are testimonial evidence. In other words, you can refuse to give up your PIN because doing so would mean answering a question based on the contents of your thoughts, not providing a physical piece of evidence. But as early as 2013 the year Apple announced its Touch ID sensor security experts were warning that fingerprints wouldnt fall under this rule. So far, this theory has held up. A Virginia judge let police use a fingerprint to unlock a phone in 2014, and similar requests were granted by other courts in 2016 and 2017.
Standing there while a law enforcement officer holds a phone up to your face or your eye is not a testimonial act.
The self-incrimination analysis for biometric and face scanning would be the same as for Touch ID, says Jeffrey Welty, a law and government professor at UNC-Chapel Hill. Standing there while a law enforcement officer holds a phone up to your face or your eye is not a testimonial act, because it doesnt require the suspect to provide any information that is inside his or her mind.
Most people using Samsungs (or another companys) face-scanning system will never be charged with a crime. And this doesnt prevent things like searching visa applicants phones, where people are complying in order to get into the country, not because of direct law enforcement action. But the Fifth Amendment still provides a general legal layer of protection against smartphone searches, which can reveal a huge amount of personal information.
This isnt a totally cut-and-dried issue, however. In certain cases, courts can still require you to unlock a device with a passcode. If the police already know whats on the device and that the person in question is the owner, the foregone conclusion doctrine may apply, says Welty. Thats what happened last month when an appeals court ruled that a man needed to decrypt two hard drives believed to hold child pornography, because the contents werent in question.
Conversely, biometric security could still be testimonial under certain circumstances, and legal expert Oren Kerr has laid out an argument for protecting fingerprints under the Fifth Amendment. In his hypothetical example, police have a phone with a biometric sensor and seven possible owners, none of whom will claim it. Putting a finger to the sensor might not be testimony, but identifying yourself as the owner of the phone could be, and so could revealing which finger (or other body part) would unlock it. One subject of a phone-unlocking order made the latter argument last year, but in that specific case, it was shot down.
Even so, both these situations are edge cases. Bottom line, if you are concerned about whether law enforcement can compel access to your device, a password or passcode is much better than Touch ID or facial recognition, but it isnt ironclad, says Welty. Of course, if youre absolutely determined to keep your data private, you might want to just delete it.
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PSA: Samsung's new face scanner won't give you the legal protection of a passcode - The Verge
By Laurie Chapman
April 3, 2017
Like the First Amendment, there is substantial information packed into the Fifth Amendment. In this section, our founding fathers have addressed issues such as double jeopardy, due process and eminent domain. It also provides citizens the right to remain silent, or not implicate themselves.
The following is a transcription of the Fifth Amendment to the Constitution in its original form.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The first part of this amendment addresses the right of a citizen charged with a capital crime to be presented before a grand jury. Typically, most states satisfy this requirement through preliminary hearings. The one exception, outlined in this amendment, is specific circumstances relating to the military.
The Fifth Amendment also precludes citizens from being subject to double jeopardy. No individual may be tried for the same crime twice. Additionally, a citizen cannot be compelled to implicate themselves in the court of law. This is commonly referred to as pleading the fifth, where a defendant or witness invokes the right to remain silent.
In Miranda vs Arizona, 1966, the court expanded on the right to remain silent as presented in the Fifth. The court held that all individuals must be advised of their right to remain silent and to an attorney. If an individual is in police custody and being interrogated, failure to advise the individual of their rights makes their statements inadmissible in court.
Also relating to the court of law, the Fifth guarantees a fair, orderly and just trial. As with the wording for double jeopardy, the Fifth Amendment only applies to the federal government. However, the text of the 14th Amendment applies both issues to states as well.
Finally, the Fifth Amendment addresses eminent domain. This states the federal government may not take personal property for public use without just compensation. In Chicago, B. & Q. Railroad Co. vs. Chicago, 1897, the court held the 14th Amendment also extended in this arena to the states.
Determining just compensation typically entails assessing the propertys fair market value. The piece of this section that has been troublesome relates to the intended use of the property.
A controversial opinion was issued by the U.S. Supreme Court that allowed private property to be seized for private commercial development. Justice John Paul Stevens issued the 5-4 decision in Kelo vs. City of New London, 2005.
The courts opinion stated:
The takings at issue here would be executed pursuant to a carefully considered development plan, which was not adopted to benefit a particular class of identifiable individuals, Rather, it has embraced the broader and more natural interpretation of public use as public purpose. In a nutshell, the court agreed that allowing the city to take ownership of a condemned property with the intention of economically revitalizing it would benefit the public. While the space might be directly privatized, the public as a whole benefits from an approved, productive space. Idaho certainly has its share of public lands, and I wouldnt be surprised to see this amendment raised in future suits relating to land usage.
Laurie Chapman publishes Political Broad bi-monthly and takes an informative, opinionated peek at the functions of government. If you have a suggestion for the author, e-mail her atlchapman@idahocountyfreepress.com or call her at 208-983-1200.
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Fifth Amendment preserves our right to due process, and more - Idaho County Free Press (blog)
Last week, Judge Nathan dismissed a challenge by a group of yellow taxi medallion owners to New York Citys regulatory treatment of Uber and similar ride-hailing services. The plaintiffs alleged that the decision to exempt Uber and its drivers from the requirements imposed on yellow cabs constituted a regulatory taking under the Fifth Amendment and violated the Fourteenth Amendments Equal Protection Clause (see our previous coverage here). Judge Nathan rejected the takings claim as untimely, noting that New York State provided a mechanism for seeking just compensation for a taking, but plaintiffs had not attempted to avail themselves of it.
In response to the plaintiffs equal protection claim, Judge Nathan reasoned that the city was justified in separate regulatory regimes for yellow cabs and Uber:
The Citys for-hire ground transportation industry like its analogues in other parts of the country and the world may well, as Plaintiffs allege, be rapidly evolving. And a notable feature of that evolution may indeed be that the Ubers and Lyfts of the world increasingly share important characteristics with traditional medallion taxicabs, including, as identified by Plaintiffs, the customers they serve, the drivers they employ, the manner in which they transact sales, and even the immediacy with which their services are delivered. But marshaling such similarities risks obscuring persistent (and undisputed) differences in the manner in which these industry participants interact with and relate to their consumers. One set responds, by virtue of a government-created monopoly, to spontaneous street hails by people with whom they have no preexisting contractual relationship and the pickup takes place with no information (for example, names, vehicle type) having yet been formally exchanged. The other responds, pursuant to a preexisting company-customer contract, to remotely transmitted electronic hails and the pick-up takes place following at least a minimal exchange of information. Such differences, easily justify Defendants decision to subject these participants to differential regulatory treatment on the basis of legitimate government policy to serve the sorts of interests discussed above. Under the deferential standards of rational basis review, nothing more is required for the challenged regulations to survive.
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Judge Nathan Tosses Yellow Cabs' Fifth Amendment Takings Claim Over Uber Regulatory Treatment - Lexology (registration)