About four years ago we published a post on some of the legal issues surrounding the use of biometric security. At the time, a Virginia Circuit Court\u2019s nonsensical decision about why a suspect could be forced to unlock a phone with his fingerprint but not give up his password reinforced the fact that the legal system had no idea what to do with biometrics.\u00a0 Fast forward to today and there are signs that at least some courts are finally coming around to recognize the legal issues implicated by biometric security and address them in a rationale manner.<\/p>\n\n\n\n
The United States Supreme Court recognized the need for this change of\ndirection in Carpenter v. United States<\/em>\n(2018) 138 S. Ct. 2206, where it instructed all courts to adopt rules that\n\u201ctake account of more sophisticated systems that are already in use or in\ndevelopment (Id<\/em>. at 2218-19) and that\ncourts have an obligation to safeguard constitutional rights and cannot permit\nthose rights to be diminished merely due to the advancement of technology. (Id<\/em>.\nat 2214.) In short, the Supreme Court\nconcluded that citizens do not contemplate waiving their civil rights when\nusing new technology, lest individuals would be left \u201cat the mercy of advancing\ntechnology.\u201d (Id<\/em>.)<\/p>\n\n\n\n Taking its guidance from the United States Supreme Court, a district court\nin Oakland, California recently denied a search and seizure warrant that would\nhave compelled the suspect to unlock his cell phone with his fingerprint and\nprovide access to his Facebook Messenger accounts. In its denial of the warrant, the court\ncorrectly found that compelling a suspect to unlock his phone with his\nfingerprint violated the Fifth Amendment protections against\nself-incrimination.<\/p>\n\n\n\n And earlier this week the Illinois Supreme Court dismissed a challenge to\nthe state\u2019s biometric privacy law. Six\nFlags had fingerprinted a minor guest without permission and then challenged\nthe law after being sued, claiming that there had to be evidence that the guest\nhad actually been injured. The Court, in\ndismissing this challenge, recognized that biometrics \u201care biologically unique\nto the individual\u201d and that \u201conce compromised, the individual has no recourse,\u201d\nso as to make harm automatic and unable to be remedied.<\/p>\n\n\n\n While it is true that a handful of court cases do not necessarily reflect a\nsea of change on the topic, it is nonetheless reassuring that courts are\nfinally asking the right questions and are willing to looking at the issue of\nbiometrics with an open mind. So while jumping\ninto biometric information and security is still something that should not be done\nby businesses without careful consideration, there is at least reason to be\noptimistic that the law will continue to develop in the right direction and eventually\nprovide consumers and businesses alike with the needed protection and guidance\nfor this technology to be responsibly used.<\/p>\n\n\n\n TLDR: Changes in the way courts are thinking about biometrics means that businesses and consumers alike can be more confident about the use of biometric security; however, caution and careful consideration should still be used before using it to replace traditional security.<\/p>\n\n\n\n ———————————<\/p>\n\n\n\n If you\u2019re involved in a lawsuit or risk management and have any questions regarding current or potential legal issues, we would urge you to contact an attorney as soon as possible to obtain advice, guidance and representation. At Baker, Keener & Nahra, we have the experience, skill, and drive to get the best possible results for our clients, no matter the size of the case or the scope of the problem. So if we can be of any assistance to you, please contact us and let us know how we can help.<\/p>\n","protected":false},"excerpt":{"rendered":" About four years ago we published a post on some of the legal issues surrounding the use of biometric security. At the time, a Virginia Circuit Court\u2019s nonsensical decision about why a suspect could be forced to unlock a phone with his fingerprint but not give up his password reinforced the fact that the legal […]<\/p>\n","protected":false},"author":1,"featured_media":1317,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[3],"tags":[],"_links":{"self":[{"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/posts\/687"}],"collection":[{"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=687"}],"version-history":[{"count":3,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/posts\/687\/revisions"}],"predecessor-version":[{"id":693,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/posts\/687\/revisions\/693"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=\/wp\/v2\/media\/1317"}],"wp:attachment":[{"href":"https:\/\/bknlawyers.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=687"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=687"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/bknlawyers.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=687"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}