The Tel Aviv District Court has permitted the Israeli police to forcibly take a fingerprint from a suspect in order to unlock his smartphone, in an unprecedented decision that reverses a lower court’s decision. The suspect in this case was arrested for possessing 37 grams of marijuana, but refused to unlock his smartphone, arguing that compelling him to provide his fingerprint violates his right against self-incrimination and his right to remain silent during interrogation.
The court held that once a court order to seize the smartphone is issued, it was possible to “exercise reasonable force” in order to obtain the fingerprint, given that doing so "does not unduly harm the rights of the suspect." The Court references in this context the right of the police to use “reasonable force” to take a suspect’s fingerprints when performing an “external search”, pursuant to the Israeli Criminal Procedure Law that governs the physical search of suspects.
Critics of the decision argue that it severely encroaches on suspects’ right to remain silent. The decision comes after a California Federal District Court recently ruled on a similar matter, holding that investigators cannot force suspects to unlock their smartphones by compelling them to hand over their biometric identification features, based on the Fifth Amendment privilege against self-incrimination.
This article was published in the Internet, Cyber and Copyright Group’s February 2019 Newsletter.