5th Amendment Rights & Digital Information
As technology advances, so does the ability to keep digital information private with the use of data encryption. Pass codes have been widely used for decades, but recently, newer technology allows users to scan their fingerprint in order to unlock devices such as a phone or tablet.
This technology boasts ease of use and protection from hackers, but users may be inadvertently giving up an important constitutional right if they find themselves involved in a criminal or civil proceeding.
The Fifth Amendment was put in place more than two and a quarter centuries ago and was historically designed to prohibit the use of torture as a means of extracting information or confessions from witnesses. The law is equally important today, as it serves to protect individuals from being forced to give testimony that may be self-incriminating.
In the case of a digital device that may contain incriminating data, the question of whether a court can force its owner to hand over access to that data may come down to exactly how the data was protected.
In order for a defendant to invoke their Fifth Amendment right, a court must try to force the person to give testimony that may be self-incriminating. The term “testimony” reflects information that one holds in the mind. The difference between pass codes and biometrics such as fingerprints, DNA samples, and iris scans, lies in where the information comes from. Pass codes reflect knowledge held within our mind, and therefore qualify as testimony. Biometrics are part of who we are, rather than what we know, and so do not qualify as testimonial.
Users of memory-based access codes such as pass codes have long benefited from the Fifth Amendment right against self-incrimination. But as newer technology such as biometrics replaces this type of security measure, users should be aware of the possible legal implications this presents. For now, at least, the simplest solution is to protect your digital devices with a fingerprint ID and a pass code.
Camden County Criminal Lawyers at the Law Offices of Jill R. Cohen Are Committed to Protecting Your Constitutional Rights
Federal and state Constitutional rights are not always clear-cut. For this reason it is essential to seek the assistance of a knowledgeable and skilled Cherry Hill criminal defense lawyer who will take the time to understand the complexities of your unique situation. Haddonfield criminal lawyer at the Law Offices of Jill R. Cohen has over 30 years of experience in criminal defense and is firmly committed to protecting the constitutional rights of clients.
The Law Offices of Jill R. Cohen are located in Westmont, New Jersey and provide criminal defense for individuals charged with all types of offenses including sex crimes, assault, manslaughter, passion / provocation homicide and murder charges in New Jersey. Our office is easily accessible to residents of South Jersey including those in Camden County, Burlington County, Gloucester County, Atlantic County, Salem County, Cumberland County and Mercer County. Call Jill Cohen today to speak with a criminal law attorney who is committed to upholding your constitutional rights. To schedule your free consultation call or submit an online contact form.