A federal judge in Washington DC has ordered a man accused of participating in the U.S. Capitol riot on January 6 to unlock his laptop “with his face,” after prosecutors argued that the laptop likely contains video footage that would incriminate him in the attempted insurrection.
Guy Reffitt was arrested in late January, three weeks after he participated in the riot, and has been in jail since. He has pleaded not guilty to five federal charges, including bringing a firearm to the Capitol grounds and a charge of obstructing justice. His Windows laptop was one of several devices seized by the FBI, which investigators said was protected with a password, but that it could also be unlocked using Reffitt’s face.
Prosecutors said forensic evidence suggested that the laptop contained gigabytes of footage from Reffitt’s helmet-worn camera that he allegedly used to record some of the riot, and asked the court if it could compel Reffitt to sit in front of the computer to unlock it.
Reffitt’s lawyer told the court that his client could “not remember” the password, but the court sided with the government and granted the motion to compel his biometrics. Reffitt’s lawyer told CNN, which first reported the court order, that the laptop is now unlocked.
The government took advantage of a loophole in the Fifth Amendment, a constitutional right that grants anyone in the U.S. the right to remain silent, which includes the right to not turn over information that could implicate themselves in a crime, such as a password. But some courts have ruled that those protections don’t extend to a person’s physical attributes that can be used in place of a password, such as a face scan or fingerprint.
In Reffitt’s indictment, the FBI said as such, arguing that compelling Reffitt to unlock his computer by sitting in front of it “would not run afoul of the defendant’s Fifth Amendment right against self-incrimination.”
Courts across the U.S. are still divided on the reading of the Fifth Amendment and whether or not it applies to the compelled use of a person’s biometrics. The U.S. Supreme Court isn’t likely to address the issue any time soon, rejecting two petitions in as many years to rule on the matter, leaving it largely up to the states to decide.