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Could Apple's FaceID raise Fifth Amendment concerns?

It is expected that people will marvel over the newest release from Apple. The iPhone X is arguably the most advanced smartphone the computer maker has ever produced, and will have major technological updates, such as faster processing, longer battery life and wireless charging.

Perhaps the most ballyhooed updated is the iPhone X’s facial recognition feature (known as FaceID) which enables a user to unlock the phone just by looking at it. This feature basks in practicality given that the new phone does not have a dedicated home button (it has a virtual one instead), but there may be security concerns when it comes to users being compelled by law enforcement to open one’s phone. 

Apple has established an exceptional track record regarding personal privacy in the face of law enforcement. It has staunchly resisted calls from the FBI and other state law enforcement agencies to unlock phones of suspected criminals when the accused refuses to provide passcodes. In light of this, will police compel users to unlock phones against their will simply by looking at their phones?

In other words, will the Fifth Amendment protections against self incrimination extend to a person’s face? A suspect can clearly assert their Fifth Amendment rights by refusing to provide a numeric passcode to gain access, but it remains to be seen whether the same protection will extend to facial recognition.

Indeed, Apple included security measures to thwart potential thieves or law enforcement from accessing data, including “SOS mode” which allows a panicked user to disable FaceID. Users must also manually enter the passcode anytime the phone is connected to a computer.

Nevertheless, this new technology exemplifies the need for an experienced criminal defense attorney to challenge potentially illegal searches. 

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