Full Virginia State Court Opinion on Passcodes vs. Fingerprints

A couple of weeks back, there was a flurry of media coverage of a Virginia state court opinion where the judge granted an order to compel a defendant’s fingerprint to unlock his cellphone while simultaneously denying a request to compel the defendant to turn over his passcode. We requested a copy of the decision from the court, which we’re posting for you today below.

In his opinion, the judge addressed whether a cellphone’s passcode and/or fingerprint authentication are testimonial communication, and thereby covered by the Fifth Amendment’s privilege against self-incrimination. In the end, the judge determined that a defendant “cannot be compelled to ‘divulge through his mental processes’ the passcode for entry” to data on a locked cellphone. Disclosure of the fingerprint, however, “does not require the witness to divulge anything through his mental processes.” As a result, the judge ordered the defendant to provide his fingerprint to unlock his cellphone.

The case rose to public attention after the Virginian-Pilot covered the decision at the end of October. From there, a number of media outlets (for example, here, here, and here) discussed the technological and legal differences between compelling a fingerprint and compelling a passcode from an individual. As additional interesting background, Wired asked many of these questions 14 months ago, when the iPhone’s fingerprint authentication was first introduced.

Here’s the full text of the ruling.

20141028 – Va Passcode Decision (1)

 

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About the Author(s)

Megan Graham

Former Assistant Managing Editor and Security, Privacy, and Technology Fellow at Just Security Follow her on Twitter (@meganmcgraham).