Why You Should ALWAYS Utilize Passcodes

While we wait for the days of retina scanners to unlock our smartphones — á la movies like Batman (1966 version), Star Trek II: The Wrath of Khan (1982), and GoldenEye (1995) — we must wrestle with whether or not to enable our devices with the now standard thumbprint security identification.

While convenient, personalized, and perhaps even close to secure [1], just because we can does not always mean that we should. And just last week, smartphone owners in Virginia have been given a good reason to be sure that passcodes, and not just fingerprints, should continue to be the norm.

In case you missed it, Virginia Beach Circuit Court Judge Steven C. Frucci ruled that requiring a criminal defendant to provide his passcode to unlock his phone for investigators pursuant to a search warrant violates the Fifth Amendment right to be free from self-incrimination. Judge Frucci explained that giving a fingerprint to police is akin to providing a key to open a door, a DNA sample, or handwriting samples, conduct which is not protected by the Fifth Amendment.

While it may seem like there is little difference between fingerprints, DNA, and passcodes, the distinction does warrant the different treatment. The Fifth Amendment specifically provides that “No person … shall be compelled in any criminal case to be a witness against himself.” Unlike a passcode, which requires the content of a person’s mind to be shared, fingerprints, DNA, and even handwriting is an innate physical characteristic or identifier. While difficult to articulate, there is a stark difference between forcing an individual to share a mental process versus requiring an individual to share a physical attribute.

This distinction, however, makes perfect sense from a historical and practical view, particularly in the context of the Enlightenment and the timing of the Bill of Rights. As Rene Descartes so aptly captured, “except our own thoughts, there is nothing absolutely in our power.”2 Put another way, our thoughts and mental processes are the only things that we maintain absolute control over; therefore, for the state to force an individual to share a thought is anathema to basic notions of individual rights and personhood. And this is precisely what the drafters of the Fifth Amendment had in mind when they preserved the right of all persons to be free from self-incrimination.

While the question of passcodes versus fingerprints is a more mundane discussion, the foundation for the legal distinction between the two cannot be overemphasized. Whether Judge Frucci’s ruling will be upheld if appealed is, of course, a different question, and will likely not be answered for some time. Nevertheless, Judge Frucci’s distinction is correct and worth discussing.

So, next time you bemoan having to type in several digits or letters to unlock your smartphone, think about the principles at work that protect your privacy from the ever-lengthening reach of the government.

[1] See Brandon Giggs, How secure is your iPhone5S fingerprint?, available at

[2] Rene Descartes, Meditations, Discourse on the Method of Rightly Conducting the Reason, and Seeking Truth in the Sciences.

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These articles are provided for general informational purposes only and are marketing publications of Gentry Locke. They do not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.