Criminal Justice Orders Mobile Phone to Be Unlocked Using Biometric Data

In the criminal case "M., B. A. por infracción ley 23.737 (art. 5 inc. c)", the first instance court required the accused to voluntarily provide the unlocking password of her device for the expert to analyze and report an opinion. In the event she did not comply with the request, the judge authorized a procedure to compulsorily obtain the unlocking pattern (fingerprint or iris scanning). The defense appealed the decision to use the defendant's fingerprint and/or iris as evidence, and the authorized physical force.

The Federal Court of Appeals in Bahía Blanca confirmed the decision of the first instance court. In particular, it understood that article 18 of the National Constitution ─which states that "no one can be forced to testify against themselves"─ does not include measures to obtain evidence, such as those requiring the physical presence of the accused as proof of their identity (for example, their participation in a line-up; CSJN, "Cincotta, Juan José" - 02/13/1963 - Fallos 255:18), or those requiring the obtention of fingerprints, X-ray images, or even the submission to a compulsory blood extraction (CSJN, "H.G.S. and another" - 12/4/1995 - Fallos: 318:2518). The Court of Appeals understood, then, that the same reasoning could be extended to this case, since the involvement of the accused providing her fingerprint or her iris to unlock her mobile phone would be similar ─and even less invasive─ than those endorsed by the Supreme Court of Justice.

The Court also considered the complex nature of the crime under investigation (drug trafficking) and the large quantity of drugs seized. According to the Court, the fact that other people or locations not yet established in the case might also be involved could not be ruled out. Consequently, it understood that the measure ordered was consistent with the background of the case, since it was necessary for the advancement of the investigation.

In sum, the Court concluded that since the compulsory requirement of the fingerprint or iris to unlock the mobile phone does not imply a degrading or humiliating intervention in the body of the accused, the measure is reasonable, proportional, and consistent with the investigation of the criminal offense.