Passwords and Biometric Features for Digital/Electronic Devices

In the last California Legal Update (Vol. 24, #2, Jan. 23, 2019), I briefed the federal district court opinion of In re Search of a Residence in Oakland (N.D. Cal. Jan. 10, 2019) __ F.Supp.3rd __ [2019 U.S. Dist. LEXIS 5055], emphasizing a magistrate judge’s conclusion that forcing a suspect to provide passwords and/or to use his or her biometric features (e.g., finger or thumbprint, facial feature recognition, etc.) to unlock cellphones and other digital or electronic devices violates the subject’s Fifth Amendment selfincrimination rights. The stated reason for this rule is that both passwords and biometric features are considered to be “testimonial communications.” Well, I’m told now that this is not necessarily correct, at least as to biometric features. While the magistrate judge was correct when she applied this rule to passwords (at least according to prior case law), there’s a serious difference of opinion as to whether it also applies to biometric features. The magistrate judge cited only one prior case talking about biometric features being testimonial communications which itself came from another federal district court (i.e., trial court), located in Illinois. (In re Application for a Search Warrant (N.D. Ill. 2017) 236 F. Supp. 3rd 1066.) But not cited by the magistrate judge was a case from the Minnesota Supreme Court (Minnesota v. Diamond (Jan 17, 2018) 905 N.W.2nd 870.), where the issue was discussed in excruciating detail. The Minnesota Court ....