Fifth Amendment rights, which protect citizens from incriminating themselves in court cases, may be in danger thanks to Samsung Electronics Co. Ltd’s (SSNLF) latest Galaxy Phone 8. 

The phone, which was released to critical acclaim last week, can be unlocked using face recognition technology. (See also: Samsung's All-Important Galaxy 8 Garners Positive Reviews). While that feature may save time and effort for consumers, it could also be used by lawmakers to gain evidence without an express consent from suspects in a case. This is because face recognition technology is not covered as “testimonial evidence” under the Fifth Amendment. (See also: Could Facebook And Google Survive A Face Recognition Lawsuit?). 

Manually-entered passwords are considered testimonial evidence because passcodes or passwords are unique and can only be obtained with a suspect's permission. Revealing pass codes or passwords can also be considered a form of self-incrimination because they provide pathways to documents or assortment forms of evidence. Biometrics, however, falls into a gray area because it does not require thought. Instead it simply requires a face scan, which can be obtained without the suspect’s permission or, even, by holding up a photograph of the said person to the smartphone. 

In an interview with tech publication The Verge, Jeffrey Welty, a law professor from UNC - Chapel Hill, said that the law for biometric scanning would be the same as for Touch IDs, which require fingerprint scanning. A face scan is not a testimonial act, according to him, “because it doesn’t require the suspect to provide any information that is inside his or her mind.”

A precedent for the latter was set back in 2014, when a judge allowed police to force a suspect to unlock his smartphone using Touch ID. There is a catch to the situation, however. Lawmakers must move fast to unlock phones using fingerprint scans because there is only a 48-hour window during which Touch IDs can be used to unlock phones. Subsequently, pincodes are required to unlock smartphones and suspects can invoke the Fifth Amendment and refuse to cooperate. Lawmakers can also compel you to unlock your smartphone or any other device, if its contents are a “foregone conclusion”. In other words, the police already know about the contents of your device before they ask you to unlock it.  

The Verge raises the specter of customs officials using face scans to unlock phones for prospective immigrants entering the country. Welty, the professor from Chapel Hill, recommends passwords over Touch ID. “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 isn’t ironclad,” he is quoted as saying in The Verge.