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Fifth Amendment and Biometrics
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Technology is constantly evolving and has continuously become more integrated with society’s day to day life. Data arguably is one of the most valuable resources to any organization. Data allows different predictive analytics and algorithms to be used, to benefit a group. The founding fathers created the amendments as a guideline for citizens and government to follow. Laws are a living document that change with time, to better suite a nation within that time. The adaptability allows different debates from different generations to occur to better understand a policy.
The creation of the fifth amendment provides citizens protection of self-incrimination. The fourth amendment protects citizens the rights to unreasonable search and seizure; not without a warrant and probable cause. In a scenario that one of these seized objects are protected by biometrics or encryption; this challenges the concept of “self-incrimination”.
The line drawn between what can and cannot be evidence is extremely blurry. In the case of Doe V. United states, Doe was asked to sign a consent form that the government was going to use to access the bank. Doe refused to sign this and subsequently lost the case. The government addressed that the request of signing the document was to produce an object. This production was not of the accord of an individual’s mental conception but was a physical request allowing the government to conduct their own research. This argument was used during another case where US Magistrate Judge Sunil R. Harjani determined that biometrics did not violate the Fifth Amendment due to it being a physical act. Lastly another case from a Virginia State Court ruled that the use of biometrics to unlock a cell phone could be compelled in court, while the use of a password could not.
Ultimately interpretation of the amendment is still up for debate. The argument at hand when dealing with encrypted data is whether this data is physically accessible or not. Personally, I believe that technology is simply not just a tool, but an extension of human existence. I present an argument that the data being stored on an HDD or SSD, is no different from information that could be stored within an individual. A storage device is utterly useless without data being provided by either an individual or entity. Attempting to subpoena evidence from a device that stores data is no different from attempting to subpoena the thoughts and consciousness of an individual. I believe that when debates like this occur, where there is no clear-cut answer; legal revisions should be prioritized.
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