Compelled Testimony? A U.S. Legal and Ethical Review of Compelled Biometric Data and Encryption

Abstract

Biological data has increasingly become interconnected and digitized, leading to the emergence of the field of biocybersecurity to address cyber threats within bioinformatic systems. Encryption provides significant social benefits by safeguarding sensitive information, but it also presents challenges to public safety. The increase of cell phone use and the rise of internet-connected devices have resulted in a greater volume of digital data for law enforcement agencies to investigate. These trends have created a demand for advanced encryption methods, including access controls relying on facial recognition or other kinds of biometric data. While policy debates regarding backdoor access to aid law enforcement in combating crime continue, courts increasingly confront important Fifth Amendment questions in criminal investigations relying on digital evidence. In these cases, courts must frequently assess whether compelling the disclosure or use of biometric identifiers infringes upon protections against compelled testimonial evidence. The balancing of national security and privacy concerns are crucial in determining whether we are willing to sacrifice privacy and civil liberties for safety. This paper examines the intersection of encryption, law enforcement access, and the legal and ethical considerations raised by compelled disclosure or use of biometric data from a U.S. perspective.