Published on: Friday, July 23, 2021

A federal judge compelled an accused U.S. Capitol rioter to unlock his laptop with facial recognition because the Microsoft Surface Pro laptop likely contained video taken from the defendant’s helmet camera during the Capitol attack (article available here). The maneuver happened after the hearing ended and the defense lawyer confirmed that the laptop was unlocked.

Investigators seized the laptop and other devices earlier this year pursuant to a search warrant, but claim to have been unable to access its hard drive. The defendant has been in jail since his arrest in January.

According to the government’s motion to compel Guy Reffitt to unlock the laptop, Reffitt traveled to Washington, D.C., from his home in Wylie, Texas, armed with an AR-15 rifle and a Smith & Wesson .40 caliber handgun. He carried his handgun in a holster on his waist at the Capitol, prosecutors said. The government argued that compelling a defendant to place his face in front of a computer camera would not violate his Fifth Amendment right against self-incrimination because it is not testimonial in nature.

In his response to the government motion, Reffitt’s court-appointed lawyer said Reffitt doesn’t think he has a passcode or a PIN to the computer, but if he did, he doesn’t remember it. Prosecuting him for failure to remember something that might never have existed would violate due process, he said.

Courts have long issued contradictory rulings on whether forced device unlocks violate the Fifth Amendment right against self-incrimination. The legalities surrounding biometric security, which in this case required merely that the suspect be placed in front of the device rather than provide login details, are even murkier. A federal court in California ruled in 2019 that investigators can’t compel a suspect to unlock a device with face recognition or a fingerprint scan, finding it identical to a password.