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A Virginia state judge ruled last weekthat police can compel a criminal defendant to provide his fingerprints, though not his passcodes, to open his smartphones to police access.

The distinction drawn by Circuit Court Judge Steven C. Frucci is that a password is knowledge, which suspects cannot be required to divulge under the Fifth Amendment right against self-incrimination, whereas a fingerprint is more like requiring a DNA sample or an actual key, which the law does allow under certain conditions. Knowledge existing only in your memory is distinct from anything in the tangible, material world.

Fingerprint scanners aren't exactly new technology – Apple introduced the option in its iPhone 5S last year, and there's at least one brand of e-cigarette outfitted with a fingerprint scanner to ensure nobody except the e-cig's authorized owner can use it (which simultaneously prevents children from vaping and renders the device useless to any potential thieves).

Attempted strangulation

But this case, involving an Emergency Medical Services captain charged with trying to strangle his girlfriend, might be the first time American courts have addressed the issue of fingerprint scanners in a criminal case.

Prosecutors in Virginia Beach have charged David Baust, an Emergency Medical Services captain, with trying to strangle his girlfriend last February. They say that video equipment in Baust's bedroom might have recorded the incident, and the video recording might be on his phone.

Baust is expected to allow his finger to be put into the scanner sometime today. However, as of press time it's still not known whether that will be sufficient for prosecutors to see what is or isn't on Baust's phone; if the phone is also encrypted and password-protected then, under the ruling, prosecutors still wouldn't be able to access its contents.


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