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Can police require you to open your phone with Apple Face ID?

Apple Face ID is the newest thing; just look directly at your phone and it unlocks and opens so you can use it. As always with new technology, however, there are questions.

The Atlantic Monthly recently published an article considering some of the issues. We won't try to reproduce it here, but here are some highlights:

Once initiated, Face ID only works when the phone's recognized owner looks at the phone. It locks just as quickly -- look away, and your phone closes down. Apple has emphasized that the device is extremely secure. It won't open for a photograph or even a mask of the owner. It won't open if you hold it up to the face of its sleeping owner. The owner, who is identified by 30,000 infrared sensors, must be physically present and looking at the device in order for it to unlock.

Even if the device is secure from pranksters and hackers, however, questions remain. For one, could police require you to look at your phone and unlock it? And if they did, could they keep it from locking down when you looked away?

There is no easy answer to those questions. The courts have heard cases in which police compelled someone to unlock their phones using fingerprint readers. Some judges at both the state and federal levels have issued search warrants requiring the owner to open the phone with a fingerprint reader.

One issue is the Fifth Amendment's guarantee against self-incrimination. If there is potentially incriminating information on your phone, would forcing you to unlock it for police mean forcing you to incriminate yourself? In past cases, physical attributes, such as DNA, have been held to be outside the Fifth Amendment's protection. In other cases, PINs and passwords have been held to be protected.

Another issue is the Fourth Amendment's protection against unreasonable search and seizure. Generally, this wouldn't come into play if the police got a warrant. If police simply demanded the phone be unlocked, however, few suspects would know whether the Fourth Amendment applied -- or whether the search would be considered unreasonable under the circumstances.

Some of these answers will depend on the technology, but others should be based on longstanding rulings related to the Fourth and Fifth Amendments. This will be an area of great interest for criminal defense attorneys.

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