By: Nicholas Feloney

At Apple’s September 2017 product launch the company introduced the iPhone X which allows users to unlock the device by simply looking at it. Unlike your phone’s traditional passcode, which is protected by the Fifth Amendment, your face and fingerprint alike are not. The Fifth Amendment protects against self-incrimination and prevents the government from forcing you to disclose your passcode because it is considered a content of your mind. However, one could certainly argue that your face, much like your fingerprint, is physical evidence and thus fair game for government exploitation. In February 2016, for instance, a federal judge in Los Angeles signed a search warrant authorizing law enforcement to use the finger or thumb of an accused to unlock her device during the course of criminal investigation.

The iPhone X’s front-facing camera uses infrared technology and a flood illuminator to uniquely identify your face. The software essentially creates a mathematical model of your face’s biometric data, which it then uses to compare and confirm your identity each time you unlock it. According to Apple, this new software will make your device more secure. Phil Schiller, Senior Vice President of Marketing at Apple said at the launch event that the software is capable of adapting to changes in your physical appearance so if you grow a mustache, get a new haircut or start wearing eyeglasses, the software will still know its you.

The new software requires only that you look at the screen with your eyes open to unlock iPhone X. Additionally, the software can be used to authenticate Apple Pay, App Store purchases, and other third-party apps you use like online-banking. It supposedly authenticates only three-dimensional objects, so others cannot use a picture of your face to beat the system. The software is not, however, capable of detecting whether you are unlocking the device under duress like, for example, if you’re arrested and law enforcement holds your phone up to your face to gain access. Of course it is possible for Apple to one day create a way for the software to read your facial expression to protect against access under duress, but that seems nearly impossible given the wide-array of emotional expressions we reflect on a daily basis.

No one will really know how this new facial recognition software will play out until the iPhone X becomes available in early November. For now, however, it seems safe to say that the traditional passcode provides you with the most legal protection over your device’s contents.

Student Bio: Nicholas Feloney is a 2L student at Suffolk University Law School. He is currently a Staff Member of The Journal of High Technology Law. Nicholas holds a B.S in Business Management & Finance from Providence College.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.


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