Apple has rolled out its latest iterations of the much-loved Iphone.  The biggest outward upgrade of the phone is the addition of a fingerprint scanner.  If you value your privacy, you already utilize a passcode lock of some type on your phone and mobile devices.  Doing so keeps your data private if the device is lost or stolen.  This is very important if you have confidential information that you are obligated to keep safe and secure.  Attorneys certainly have a responsibility to keep private data private.  These days, we communicate with clients through many means:  email, texts, instant messaging and many more.  Most of those can be accessed through our mobile devices.  Doctors, accountants, nurses, human resources managers, and others may have similar legal obligations to protect the integrity of the private information with which they are entrusted.

Other people have different, if less legal, reasons to keep their information private. Sometimes, the information stored in or accessible through a phone or device could be used to bring criminal charges against a person.  In other cases, the information might not be evidence of criminality but it could subject the person to embarrassment or humiliation if disclosed.

If you do have a passcode on your phone, that information is secured behind that lock.

The Fifth Amendment provides that no person may be compelled in a criminal case to be a witness against himself.  The Georgia Constitution has a similar provision.  This protection applies across a range of situations where the person cannot be forced to give information which would incriminate themselves.  This protection is limited to situations where the government is seeking to require the person to make a testimonial statement.  A testimnial statement is one which reveals the contents of your mind.

There are a number of situations where the court has held that the Fifth Amendment does not protect against being required to provide non-testimonial information which could incriminate the person.  Examples include the taking of fingerprints, voice exemplars, DNA samples, writing exemplars.  It can also include acts like producing the key to a container or safe that may contain incriminating information.

However, if the lock is a combination lock or a passcode lock of some type, you cannot be compelled to provide that content from your mind.  In other words, the police can make you give them your keys, but not your PIN's.

In this situation, the biometric fingerprint scanner offers a great convenience, making it easier to unlock your phone dozens of times per day versus entering a four digit PIN, an alphanumeric password, or a unique pattern, but such convenience may come with a price.

If your phone is secured only with your fingerprint pattern, the police could require you to hold your finger to the scanner to unlock the phone, and you would have no constitutional protection against being required to do so.

This is true in part because the Georgia courts are among those nationwide who see cellular phones as nothing more complicated as a container for things which if found unsecured can be opened and rummaged around in so long as the search is reasonably related to the investigative purpose.

If you want to protect the integrity of the private data stored on your mobile device, the fingerprint scanner, under current law, is not the best way to protect it.  So, even if your device offers you the option of a fingerprint scanner, choose another security option.

The legislature could step into this privacy arena and provide protection for persons using this security option, which includes persons who have a legal obligation to secure information.  It remains to be seen whether they will do so.