Why You Should Stop Using Face ID

0:00Welcome to The Rest of Science, I'm Hannah Fry. And I'm Michael Stevens. Right now, I'm thinking an illegal thought. Uh-oh. Or am I? I can't tell. You can't tell. I could be committing all kinds of crimes up here right now. But is it to think it to commit the crime? That's what we're going to talk about today. We're going to talk about the power of thoughts, the responsibilities you have as a thinker, and whether you have any. Can you own a thought? Can you be punished for it even? Should you be? I want to talk about this today because I read a few weeks ago like a startling fact, which is that the police are allowed to collect evidence from you by unlocking your phone if it has face ID or fingerprint recognition encrypting it.

0:45But however, if you lock up your phone with a passcode, they can't get into it legally. What? So wait, hang on. I need to understand this. So if you've got face ID on it, they can like hold the phone up and basically take the image of your face, as it were. That sort of belongs to them, you know, in some sense. They have an ability to take that from you. Likewise, your fingerprint, they can take your fingerprint from you, but they can't take the thing that's in your mind, which is the numbers. Exactly. That's what I thought was so exciting, that we are treating legally what's in your mind with more priority and privilege than your body.

1:20So if the cops arrest you and they tell you, hey, you got to tell me your passcode. You do. They get into your phone with that passcode and they find text messages where you admit to this crime. This statement, I read it on the Internet, was that they cannot actually charge you or bring that as evidence in court. However, if they found the texts because they just pointed your phone at your face and it unlocked, that's allowed. As it turns out, that is correct. Kind of.

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4:30Michael Houser, are you trying to tell me here that something you read on the internet wasn't quite right? Well, it's really close. I looked into it and as it turns out, we don't really know yet. Different courts in the United States have ruled differently on this. The Oregon Supreme Court tried a case where this woman, last name Pittman, had been pulled over and police found a whole lot of meth in her car. And they also found a whole lot of little baggies. And they were like, she's selling meth. We just want to unlock your phone to see. And they used her fingerprint there at the scene to unlock the phone.

5:07And they were able to read messages showing that she was definitely selling drugs to people. In court, her lawyers said, hey, this violates her Fifth Amendment right to not have to incriminate herself. Because you should be able to say, no comment, you know, I take the Fifth Amendment, whatever. That right to not incriminate yourself is famous because we see it in movies all the time. Oh, I plead the Fifth. And we also have been living for hundreds of years under that kind of a law. What does that specifically mean? It means that the contents of your own mind cannot be used by a prosecution to convict you.

5:49Now, you can let them use it. If you want to get caught, you can totally tell them I did it. Right. But you cannot be compelled to. If you refuse to answer their questions, you cannot be penalized. Other people, of course, can be. That's what a subpoena is. If you have information about something that I've done that's illegal, the court can compel you to witness against me. But it's not inside of your own head. And so today, when we have so much information about where we've been, what we've been saying, like actually documented on this little phone and they're locked, not within our minds, but within our devices, it becomes really important for us to answer the question, is the contents of your phone the same as the contents of your mind?

6:33But we should talk about what exactly it means so that we can figure out what we're talking about today. Prior to the year 1215, so we're going back a long time, how people were found guilty or innocent was a little bit more loosey-goosey. Okay. I'm sure you've heard of things like. Quite a lot was loosey-goosey. Yeah. In the 1100s. If you go back that far. Hey, this is the 1200s. Okay. But not everything was up to date in the world in the 1200s. Still isn't. But the point is that prior to then in England, in Europe, there were trials by ordeal. You arrest someone. You think they're guilty of a crime, but they say they didn't do it.

7:15Easy. We don't need a jury. We don't need to find evidence. Let's just have them do something wild, like hold on to a red hot piece of metal or we could throw them into the ocean with rocks tied to them. and if they're truly innocent, surely God himself will intervene, miraculously save them, and we will all know that they're innocent. This is brilliantly flawless logic. It's brilliantly flawless. They use this quite a lot on the witch trials, didn't they? Although I seem to remember the witch trials, they did it kind of the other way around. If you managed to save yourself from the bottom of the ocean where you were tied down with rocks, then that demonstrated you're a witch.

7:55And if you did indeed die, then, oh, whoops, We just killed an innocent woman. Because if you were saved, it's because the devil saved you. Sure, sure. But in different circumstances, it's God saving you because you're innocent. So here's the thing. Loosey-goosey is the key word. There were trials by fire, trials by water, trials by ingestion. If you're truly innocent, then we'll give you this poison and God will intervene. Now, believe it or not, that wasn't really popular. Okay, I am surprised. To be fair, though. With the criminals or the public at large? Well, with anyone. As I researched this, I found that actually a lot of modern scholars have said, to be honest, like it wasn't that bad of an idea.

8:37Because if you look at the records of people who were subjected to trials of ordeal, there's like a lot of people who were vindicated by it. Okay. Like what really would happen is that someone who was guilty would just refuse to do it and they would settle and they would accept a punishment. If someone really said, I will walk across the hot coals because surely God will save me. And everyone believed that he would. Then an innocent person would decide to do it. And often there was a lot of leeway over how terrible the ordeal was. And so it would kind of like be orchestrated such that, all right, none of us believe they did it if they're willing to go through with it.

9:16So we won't make it too hard and then we'll demonstrate to the public that they're innocent. Oh, nice. OK. So another problem with early justice was coerced confessions. This was a much more common practice of like, well, if we torture the person enough, they'll eventually tell us that they did it or they'll tell us the truth. As it turns out, no, coerced confessions tend to be very unreliable. I mean, I would say that that remains a relatively modern problem there, Michael, I think. Coerced confessions. I think that one hasn't really gone away. Well, I know. The problem is, like, people still call confessed confessions like a war crime.

9:55They'll call it out. But whether or not it gets, you know, justice ever served is a different question. These rights to not be compelled to incriminate yourself grew out of that historical context. A lot of the original people who came up with the importance of not being forced or compelled to witness against yourself were also people motivated by freedom of expression, where they just didn't believe what they were supposed to believe according to the church or the political powers that be. And they thought, I shouldn't be compelled to admit my beliefs because I believe them strongly and I don't think that thoughts should be criminalized.

10:36Here's the thing, though, OK, because I think you could argue that in a lot of ways, if they take your blood or your hair samples or your saliva, you're sort of incriminating yourself there as well, though, right? Like, why didn't they come under the Fifth Amendment? That's the exception. Yes. The Fifth Amendment has been interpreted as purely being the contents of your mind. So in that case of the state of Oregon versus Pittman, it was found that biometrics are an exemption from the Fifth Amendment. They really can force you to use your fingerprint to unlock your phone. So this comes down on the side of blood samples, hair samples, saliva samples.

11:18Exactly. And this was the motivation. The court said that if her phone had been locked with a passcode, they could not have asked her to provide that passcode. because if she provides the passcode, she is conveying information that's in her mind that can indirectly cause them to learn all kinds of things about her. Whereas if you ask her to simply put her fingerprint on the phone, all you're really asking her to do is demonstrate that she can move her finger. Okay. Okay. The actual court said this? Yes. Wow. So biometrics are not a violation of your Fifth Amendment right, according to Oregon v.

11:57Pittman. Okay, everybody immediately go and change your phones, particularly if you happen to be in the mafia. You know, it's a good idea. Well, maybe. You see, there have been court cases that found that biometrics, unlocking with face ID or a fingerprint, is considered testimonial. That's a key word here. Testimony is when you divulge information that's in your mind. And that's opposed to physical evidence, which is parts of your body. That's right. And so in U.S. versus Brown, that case was in 2025. So just last year, they found that unlocking a person's phone with their fingerprint was actually a violation of their Fifth Amendment right.

12:38And this was actually a case that pertained to some people who were at the January 6th events at the U.S. Capitol. The plaintiffs in that case had their phones looked through and the court there ruled that it was inadmissible because they were compelled to give a fingerprint. And in that case, the court said they shouldn't have been forced to do that. Even the fingerprint was not OK. Even the fingerprint wasn't OK. Interesting. You're safe with a passcode. You may or may not be safe with a fingerprint. It's still definitely the case that a passcode is always upheld as, yeah, that's their information, which means the contents of your phone, when protected by a passcode, is treated like the contents of your own mind, where showing it is your choice.

13:25You have a right to be silent and your phone has a right to be silent unless you lock it with your fingerprint or face ID, in which case, game over, buddy. See you in 30 years. If you've committed some crimes. Yeah. My mum, as I was growing up, would always tell me, don't ever put in writing anything that you wouldn't want your mother, your accountant or your Catholic priest to see. And I think overall, actually, in life, that has been pretty good advice. But it does make me wonder what kind of shady shit that woman was up to. Yeah, this was like a rule of hers that she needed to teach you. being on being a like a youtuber i feel like don't write anything down that you wouldn't want to put on your youtube channel because it will always wind up being discovered right okay i see oh sorry i understand your youtube channel is your version of my catholic priest exactly right exactly you know google searches for a really really long time i was really careful not to put anything into a google search that i wouldn't want you know my mother my catholic priest my accountant to see but actually as time has gone on i feel like i've relaxed that you know i think if you looked through my history of google searches you'd be like what kind of weird stuff is this woman having having anxiety dreams about three o 'clock oh sure for mine people would be like this guy can't spell anything what the heck but people have been done for that you know you know their google searches you know how do you dissolve a body how do i poison my wife that kind of thing like people have those hold up in court, even though actually that sort of feels like a very private Google search in the middle of the night feels as close to what's going on inside your own head, inside your own thoughts as it's possible to be.

15:10You're not even really sharing it with anyone. Unlocking someone's phone to look at their search history is different than looking in their own mind because that search history is them reaching out into the world and performing an action. whereas photos they've taken i feel like that's a much more private action do yeah because if they've taken the photos and they haven't shared them then it's kind of like an externalized prosthetic version of just looking at something and remembering it interesting the one i'm i think is going to come up quite a lot in the future is whether chatbot logs you know if you're Talking to ChatGPT.

15:54I mean, I know they've already been used because the guy who's been fingered for starting the Palisades fire in California. Right. He was known to be in the area where it started. Right after or soon after he started the fire, he was asking ChatGPT like, hey, can I be found liable for a fire if I'm the one who threw the cigarette out? And the authorities had access to that. And that was part of the case against him. And that was the thing that convicted him. That and many other things. Yeah, yeah, sure. All right, so so far we've been talking about whether or not authorities, the state, have the right to compel you to share information that's within your mind.

16:38And today, by extension, in your phone. I think the history of the law being in place makes a lot of sense. but it sort of feels like in the past for something to leave your mind there was a much bigger action that you had to take you know you sort of had to make much more effort for you to broadcast something out in the world but once you reduce that barrier to entry of something leaving your mind I mean I'm thinking here about the neurotransmitters that the you know the things that are being trialed on real humans at the moment things like Neuralink where where you You are essentially implanting computer chips into the brains of humans.

17:14I mean, what about in that situation? Is that leaving your brain? It is. But once it's out of your brain, we don't have laws that are clearly built for those scenarios. Who owns all that data from my brain that's now on a computer hard drive? Because in the past, the only way ideas would get out of my brain is that I said them, I wrote them down, and now it becomes witness testimony and it's a thing that can be shared. But if a computer has a big log of my thoughts, well then, do I own it or does the company own it? And how can it be used by that company? And these are still questions that we're trying to resolve.

17:53It's a big part of neuroethics. Like, what do we do now that we can look inside someone's brain? After the break, I want to look into something a little bit different, which is extracting information, not by compelling the person to share it, but by just looking directly into their own brain. Is that what you're doing now? That's what I'm doing right now. Are you looking into their brains? Oh my gosh. Put that down. Put that. I can't believe you're thinking that right now. Oh, that's a good point. Yeah, you should go to the bathroom. Wow, I just was flooded with viewer thoughts as I did that. Sounds very much.

18:32But should I be allowed to do that after the break?

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21:35I think one of the more pressing applications, and by pressing, I mean that this has been going on for decades, is what's known as the P300 signal. This is a signal in the brain. It's like an activation event of neurons that only happens when you recognize something. So if I showed you your children, it would light up. If I showed you a picture of my best friend from fifth grade, yours would not light up. I mean, it could. That'd be pretty cool. That would be pretty cool. But this was known to psychologists for a long time. And then the scientist, Dr. Lawrence Farwell, said, well, this could be used in court.

22:16Oh, Lord. Right? Yeah. Like, now hold on a second. This guy says he didn't do it. Well, let's show him photographs of the crime scene. And if his brain lights up, then he recognizes it. And that's physical evidence rather than testimonial. Or is it? That's the question. Is it testimonial? Testimonial means information from your mind. I mean, it's information from your mind. It's information from your mind. But if we scan your brain for it, you aren't willingly giving it up. There's like three prongs to defining allowed testimony. It cannot be compelled. It must be information and it must come from the mind.

22:55If someone volunteered to be part of a P300 test on their recognition, then it could be allowed because they've consented to it. And that's how it's happened so far in courts. But you could just close your eyes and be like, I refuse to look. About 20 years ago, there was a guy named Terry Harrington who had been convicted of a murder back in the 70s and had always, always denied that he was part of it. He always proclaimed his innocence. When this technology for the P300 event related potential came around, he reached out and said, do it to me because I wasn't even there. I'd never even been there before where the murder happened.

23:33And Lawrence Farwell went there and tested the guy's brain. And sure enough, all the locations and information that only the murderer would have known didn't cause any recognition signal in the guy's brain. Here's the problem, though. They didn't bring it to court because all they did is they confronted the witness who had fingered him. It was this guy, Hughes, who said, oh, yeah, Harrington did it. They came to the guy and they said, you know, we just did this brain scan and like he passed. He wasn't there that night. And the guy went, oh, well, can I recant? Because I actually lied. Wow. So the witness recanted 30 years later.

24:13Wow. And the guy was released. That's incredible. So it wasn't because of the P300 brain scan. Sure. But this was in Iowa, by the way. The Iowa courts said that they would consider that evidence admissible. However, it wasn't necessary for them to reverse his conviction. But then in a lot of ways, this is going back to your trial by ordeal thing, right? Which is that the P300 test, if it's so good at detecting whether you recognize a piece of evidence, an individual, whatever it might be, only innocent people would ever want to go through that. Yeah, right. Surely the neuroscience machine will vindicate me.

24:56Now, ever since that Iowa case, a lot of other courts have said that P300 scans are inadmissible. But if the defendant really wants to do it, then that's their right. I see. They can divulge whatever they can say, whatever they want, but they cannot be compelled to say or be scanned in the brain against their will. But there isn't a constitutional amendment about this. It comes down to what different courts have decided in different contexts. Did you see the paper, 2023, I think it was, where admittedly with willing volunteers, there was a group of scientists who managed to reconstruct images that participants were looking at while they were in an fMRI scanner.

25:36I hope we'll be able to put a few of these pictures up on the screen. But it's phenomenal how close these images were. So people were given certain images to look at and just purely based on the readout from the fMRI, having been trained on tens of thousands of images in the past, these algorithms were able to reconstruct what they were looking at with really, really incredible accuracy. I looked into this in a minefield episode. Oh, yeah. And yeah, the idea is that, well, if I'm just looking at your brain activity, even really vaguely, even with like an EEG, MRI is better. But if I do this and I just show you a bunch of images and I know which ones you're looking at, over time I can learn to associate certain activities with certain colors and certain shapes and certain faces.

26:18And you do this 10 ,000 times. Yeah, you can start to show the person something and you don't even know what it is. But you look at the activity and a computer algorithm can go, I think they're looking at a question mark. Now, on minefield, we looked even a step further, which is, well, we should be running this on someone's brain while they're dreaming. Because then we will be able to create on a computer screen what they are seeing in their dream. And did you? Maybe. Problem is, people don't really remember a whole lot about their dreams. Okay. So you wake them up and you go, were you dreaming about a tomato?

26:52And they're like, I don't, maybe, yeah, there was something red. And you're like, oh, maybe we did it. Okay. We certainly don't know that it looked exactly the way it did on the computer. Oh, I'd like the idea of having a high res replay of my dreams. Wouldn't that be amazing? It would be cool. I think one of the problems is that dreams aren't necessarily a movie being played in your head. I think in a lot of ways, they're a collection of feelings and recollections and information being quite arbitrarily moved around and stored or not. And then when you wake up, I think you confabulate a lot of what that dream was.