But it has already been argued successfully that giving biometrics is analogous to giving blood, hair, fingerprints, standing in a lineup, providing a writing sample, or wearing certain clothes, all of which you can be compelled to do. To argue against being compelled to do or provide biometrics without using testimonial arguments would be going against a lot of case law and precedent.
There is a specific precedent where you being compelled into providing biometrics can be inadmissible, and that is where you are compelled to unlock the phone, since doing so, even with biometrics is akin to providing testimony that the phone is yours, you know how to unlock it, which finger to use, etc. (see United States v. Brown, No. 17-30191 [1]). But that doesn’t actually prevent them using your biometrics to unlock the phone, so its pretty niche.
This is a bizarre response. My comment was not a denial of legal history on biology-as-testimony, it was instead opening space for other legal or philosophical objections: autonomy, bodily integrity, possibly Fourth Amendment concerns about unreasonable searches.
But you're replying as if my comment was claiming courts haven’t treated biometrics like physical evidence. That's not what I was doing.
The reference to Brown here appears to be massively misleading: far from being niche, it complicates the biology != testimony in a way that cuts to the heart of the most common real-world application of biometric compulsion which is smartphone access; from chatgpt'ing about it it appears that it's not the only court to rule on this and it probably awaits a SCOTUS decision to resolve an existing split.
You didn't elucidate any of that, or actually make any argument, so I had no way of knowing what you were thinking. You said “being compelled to provide biometrics does not necessarily hinge on it being analogous to testimony” so I stated that there was a lot of established case law already on compelling individuals to provide analogous physical information/samples, which covers bodily autonomy, bodily integrity, and the 4th Amendment. The only contention as far as I know, is around the 5th Amendment, but if you had other information, I’d be interested to hear it.
The Supreme Court has declined multiple times to hear cases that would help settle the legal ambiguity. I don’t think United States v. Brown complicates things because the specifics on the case were not whether or not you can be compelled to provide biometrics, but whether being compelled to “unlock a device” and manipulating the device yourself constitutes protected testimony. [0] They even cited United States v. Payne [1] where the court upheld that forcibly taking your finger to unlock a phone did not violate the defendant’s Fifth Amendment rights, and at issue was only the wording of the order.
From my understanding, the current split about being compelled to provide passcodes, and to a much lesser extent biometrics, is the foregone conclusion exception stemming from the Fisher v. United States [2] case, where, as Justice White said “the existence and locations of the papers[were] a foregone conclusion and the [defendant’s physical act] adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the papers… [And so] no constitutional rights [were] touched. The question [was] not of testimony but of surrender.”
This has been used in relation to court cases on biometrics and passcodes [3]. It appears that courts that rule that you can be compelled seem to look narrowly at the passcode itself i.e. the government knows you own the phone and knows you know how to unlock it, so it is a foregone conclusion to provide it. Courts that rule you cannot be compelled seem to look at the phones contents i.e. the government does not know what is on the phone so decrypting the data would be providing protected testimony, or a stricter interpretation that you cannot be compelled to disclose the contents of the mind.
There is a specific precedent where you being compelled into providing biometrics can be inadmissible, and that is where you are compelled to unlock the phone, since doing so, even with biometrics is akin to providing testimony that the phone is yours, you know how to unlock it, which finger to use, etc. (see United States v. Brown, No. 17-30191 [1]). But that doesn’t actually prevent them using your biometrics to unlock the phone, so its pretty niche.
[1] https://law.justia.com/cases/federal/appellate-courts/ca9/17...