The only way to be certain cops won’t receive instant access to everything on your new iPhone X is to turn off its flashiest new feature, according to the ACLU.
Apple introduced its new FaceID feature, which allows its new $999 phone to be unlocked just by the sight of your face.
It could well be used to the benefit of police in possession of a locked iPhone, since court cases over the past several years have ruled that cops can force citizens to use their thumbprints to unlock their iPhones—but not compel them to hand over their iPhone passwords.
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“Under the current doctrine, it’s most likely not going to be a Fifth Amendment problem for police to [use your face to unlock your iPhone],” said Brett Kaufman, a staff attorney for the American Civil Liberties Union who works on national-security issues.
“I would hesitate to say it’s legal, but it wouldn’t violate your self-incrimination right under the current doctrine.”
Kaufman said the “real issue is a Fifth Amendment one,” since citizens can’t be compelled to be a witness against themselves. Courts have ruled in cases dating back to 2014 that thumbprints, which are likely considered to be in the same biometric data category as faces, are more of an act of identification than an act of testimony.
“Most of the cases so far have said when the government is forcing you to use a thumbprint, that is not testimonial,” said Kaufman. “They’ve largely ruled that your thumbprint doesn’t communicate any testimony to the government.”
That means the iPhone’s startlingly accurate new feature, which was shown off in demos shortly after Apple’s launch event, might be a little too easy to use for cops seeking a motherlode of data from your phone without much hassle.
A demo video from The Verge shortly after the event shows that the only way to stop the device from unlocking your phone when someone else is pointing it directly at you is to keep your eyes permanently closed.
“Can [police] move your body or hold your head to get the scanner in the right place? I’m not sure that’s clear,” said Kaufman. “Beyond those kinds of situations, though, they would need a warrant to compel you to be anywhere or take things off your body.”
This week, Apple introduced a potential fix, in some use cases, to the problem of unwanted thumbprint searches. The company introduced an SOS mode that would, among other things, temporarily turn off thumbprint recognition and force the user to type in his or her password if a side button is pressed five times in rapid succession.
That might be a help, but it wouldn’t prevent unwanted police searches that users didn’t anticipate or didn’t have the time or presence of mind to stop.
There is one surefire way, however, to get around FaceID’s potential privacy disaster: Don’t use it.
“Put a strong, non-four-numeral password on your phone and limit guesses to 10,” said Kaufman. “If you have a four-digit code and don’t have the 10-guess limit on, even local law enforcement could have a device to get past that.”
Kaufman recognizes, though, that the speed of turning on your iPhone just by looking at it might be enough for some.
“These things are convenient,” he said. “People need to make their own decisions about what trade-offs they want to make in terms of their privacy.”
