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Biometrics and the Fifth Amendment: A New Frontier
In recent years, new questions have arisen regarding privacy and the scope of certain constitutional protections, stemming from the dramatic increase of use of electronic devices, such as smartphones, tablets, and laptop computers, to conduct business. The Government's interest in accessing such devices is increasing and unsurprising: electronic devices often contain a goldmine of communications of interest to law enforcement, including text messages, email, and social networking applications. Additionally, some of the most frequently used "apps" store highly sensitive data, including financial records, health records, photographs, and evidence of internet activity, just to name a few.
When used for work, mobile devices routinely contain employers' proprietary and confidential data. The struggle between Government requests for access to such data and constitutional protections — including the Government's ability to compel the turnover of biometric "keys" to unlock mobile devices — create areas of concern for employers. How the protections of the Fourth Amendment against unreasonable seizures and the Fifth Amendment against self-incrimination will apply to information stored on their employees' personal and business mobile devices is starting to unfold.
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