In the investigation, the FBI agents asked the suspect to unlock his iPhone with Face ID, and he complied. They searched the device and found “various items of interest.” But they couldn’t do a more thorough search because they didn’t have his passcode. After a court granted them a second search warrant, they were able to get the passcode and continue searching.
When it comes to the law, there is a difference between something you know, like a password, and something you are, like a fingerprint or face print. If it’s something you know, then it falls under the Fifth Amendment because you could be incriminating yourself by telling police your password.
But things like DNA, fingerprints, and now facial recognition fall under standard evidence that police can legally collect. And I have a feeling there will be plenty more cases involving law enforcement and Face ID. See: How Face ID could be a game-changer for aggressive US border agents.
However, that could change in the future:
Thus far, there’s been no challenge to the use of Face ID in this case or others. But Fred Jennings, a senior associate at Tor Ekeland Law, said they could come thanks to the Fifth Amendment, which promises to protect individuals from incriminating themselves in cases.
Jennings thinks that as long as there’s no specific legislation dealing with this apparent conflict, courts will continue to hear arguments over whether forced unlocks via facial recognition is a breach of the Fifth Amendment.