Galaxy S8 Face Recognition Isn't Protected By 5th Amendment

Samsung Galaxy S8 S8 Plus Hands On AH 20

The iris scanner and facial recognition features of the Galaxy S8 and the Galaxy S8 Plus aren’t protected under the Fifth Amendment, industry experts are reminding consumers just weeks before Samsung’s upcoming pair of Android flagships officially hits the market. The Fifth Amendment that protects against self-incrimination by allowing people the right not to testify against themselves in a case when doing so would criminally implicate them has previously extended to both passwords and passcodes, as providing either was defined as giving testimonial evidence, i.e. evidence that consists of one’s thoughts. This protection technically doesn’t apply to any kind of physical evidence like fingerprints, as several previous cases have already shown, but it also doesn’t extend to devices that can be unlocked with an iris scanner or facial recognition.

Both iris scanning and facial recognition rely on certain physical features that courts can and do categorize as physical evidence, meaning e.g. you cannot refuse to unlock your smartphone by pleading the fifth if a police officer can simply hold the phone up to your face and let it unlock. While some privacy advocates previously argued such search isn’t legal, a precedent on the matter has yet to be made and courts seemingly agree that a scenario in which an officer holds a phone up to someone’s face isn’t defined as a testimonial act as it doesn’t require the suspect to share any contents of their thoughts.

There are certain exceptions to the rule outlined above, legal experts explain, noting how most exceptions pertain to scenarios in which authorities aren’t certain who owns the device they’re looking to unlock with an iris scanner or facial recognition. While looking at your phone to unlock it in front of officers isn’t a testimonial act, claiming ownership of a device certainly is, meaning you’re not required to do so if authorities aren’t certain who owns the smartphone they’re seeking to unlock. Overall, if you’re planning to acquire the Galaxy S8, Galaxy S8 Plus, or any other upcoming smartphone boasting biometric authentication, keep in mind you might want to stick with a regular password, pattern, or a passcode if you’re adamant to not let authorities access your device under any conditions.