As of October 2, 2018, New Zealand passed a law that requires travelers entering the country to provide passwords, thumbprints, or other biometric access to their digital devices. If a traveler attempting to enter New Zealand refuses to unlock their device, they could face prosecution and fines upwards of $3,000. New Zealand is the first country to pass a statute requiring travelers to provide access to digital devices. Other countries are expected to follow suit.
 
It may be not widely known, but U.S. Customs officials have already claimed the authority to force travelers into the United States to unlock their devices even without such a statute. Courts have repeatedly permitted government agents to require travelers to provide access to their devices without a warrant and review and copy the data contained within. Refusal to provide such access could result in denial of entry to the United States.
 
Notably, the ACLU is currently litigating whether such searches are, in fact, constitutionally permissible. The leading case is currently pending in the Federal District Court for the District of Massachusetts. Until that case is decided, U.S. Customs and Border Control maintain that they can force travelers to open their devices for search and review.
 
The matter becomes more nuanced once you enter the United States, and are outside of the aegis of U.S. Customs and Border Patrol. Courts have drawn a distinction between devices that require the entry of passwords and those which may be biometrically unlocked using a fingerprint or facial recognition.
 
Courts have deemed forcible password entry as a violation of a defendant’s Fifth Amendment protection against self-incrimination. A law enforcement officer cannot force a suspect to enter a password. However, different rules apply for the use of a fingerprint or facial identification. Upon a showing of probable cause, a law enforcement agency can get a warrant to search a device, and in doing so, forcibly use a suspect’s fingerprint or face to unlock it. Such biometric factors are not testimony that can be incriminating to a defendant. Accordingly, they do not implicate the protections of the Fifth Amendment.
 
In fact, a recently as September, FBI agents in Michigan got a warrant requiring a suspect in a child pornography investigation to unlock his iPhone with facial recognition. This was the first such case in which facial recognition technology has been used. It is unlikely to be the last. 
 
This is a rapidly evolving area due to the rapid pace of technological advancement. We will continue to update this blog on this topic as events warrant.

Read more from Gallet Dreyer & Berkey’s White Collar Criminal Defense blog or contact an attorney in our White Collar Crime practice.