Defendants cannot be forced to give up a pass code to unlock their cell phones for police, a Virginia judge has ruled, but can be required to provide fingerprints for that purpose.

The ruling by Circuit Court Judge Steven C. Frucci came in the case of David Baust, accused of attempting to strangle his girlfriend. Police suspected Baust’s cell phone might contain incriminating videos and wanted to force him to provide the numerical code to unlock the device. Prosecutors sought an order from Frucci to force Baust to provide the code.

Instead, the judge backed the argument of Baust’s attorney, James Broccoletti, who said the pass code was protected under the Fifth Amendment. Frucci agreed, ruling that the pass code is abstract knowledge and is protected. He did say that Baust’s fingerprint, like his DNA, is subject to use by law enforcement. Police were unsure whether a fingerprint would unlock the phone, however.

Rulings such as this could cause those who want to move from password to biometric file protection to rethink their stand.

-Noel Brinkerhoff

To Learn More:

Police Can Require Cellphone Fingerprint, Not Pass Code (by Elisabeth Hulette, Virginian-Pilot)

Law Enforcement Can Make You Unlock Devices With Your Fingerprint in Virginia (by Lily Hay Newman, Slate)

Apple’s Fingerprint ID May Mean You Can’t ‘Take the Fifth’ (by Marcia Hofmann, Wired)

Waiting for the Supreme Court to Decide if Cell Phone Use can be Private (by Noel Brinkerhoff, AllGov)