HB 438: Prohibiting Self-Incrimination with Biometric Phone Access
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Utah’s Constitution says that “The accused shall not be compelled to give evidence against himself”—a slightly stronger version of what’s in the U.S. Constitution’s 5th amendment.
Several stories have emerged of police officers gaining access to a person’s phone using biometric access—the person’s finger print or facial scan. Because people don’t typically think about self-incrimination when using their face the same way they might if they were asked to divulge their password, these stories have illustrated a problem in the current law.
A law enforcement officer may not use and a court may not order an individual to provide the individual’s biometric information for a law enforcement officer to access the individual’s personal electronic device that is protected by biometric security.
This is a concern seen by many attorneys. For example, a staff attorney with the Legal Aid Society noted that, “Traditionally, using a person’s face as evidence or to obtain evidence would be considered lawful. But never before have we had so many people’s own faces be the key to unlock so much of their private information.”
People should not be required or requested to incriminate themselves, and given the ease of doing so by using biometric information, this legislation is necessary.