Quebecker Faces Jail For Not Giving Up Phone Password To Canadian Officials 340
wired_parrot writes Canadian customs officials have charged a 38-year old man with obstruction of justice after he refused to give up his Blackberry phone password [on arrival in Canada by plane from the Dominican Republic]. As this is a question that has not yet been litigated in Canadian courts, it may establish a legal precedent for future cases. From the article: [Law professor Rob] Currie says the issue of whether a traveller must reveal a password to an electronic device at the border hasn't been tested by a court.
"This is a question that has not been litigated in Canada, whether they can actually demand you to hand over your password to allow them to unlock the device," he said. "One thing for them to inspect it, another thing for them to compel you to help them."
What? (Score:5, Funny)
None of this can be true, I was told no one had blackberries anymore. It's all lies lies I tell you
Americans to the rescue (Score:3, Funny)
The Canadian government should just reach out the NSA. I'm sure they could provide the password. No warrant necessary.
Re:Americans to the rescue (Score:5, Informative)
What is the point? (Score:5, Insightful)
Terabytes (Petabytes?) of encrypted data enters the country every day from across the world via the internet, yet Border Services thinks they need to inspect the data on everyone's phones?
I sincerely hope he wins the case.
Re:What is the point? (Score:5, Informative)
yet Border Services thinks they need to inspect the data on everyone's phones?
No, not everyone's phones, just phones of people they suspect of something.
It's the same deal with inspecting the contents of suitcases. They don't inspect everyone's suitcases, just some of them.
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Re:What is the point? (Score:5, Insightful)
The violation of privacy requires some reasonable counterbalancing objective. Inspecting physical goods has the reasonable objective of preventing smuggling. And it's reasonable that if you have something you really want to keep private (say you're a transvestite and don't want to come out), you'll leave the embarrassing material at home.
A phone or other electronic device, on the other hand, can contain all manner of private information. It's a much deeper invasion of privacy than just searching somebody's luggage. Deleting all that information just to be able to travel would constitute a considerable burden for most people.
The counterbalancing objective (I guess preventing the smuggling of child porn or something like that?) is much weaker. There are so many other ways of smuggling data that these inspections aren't likely to lead to any positive results.
So you have a much greater invasion of privacy vs. and a much weaker reasonable objective for needing to perform the search. I don't think the crown will win this, or at least I hope they won't.
Re:What is the point? (Score:4, Insightful)
Get a Warrant
At the border they're not required to get a warrant to inspect you & your stuff. Then can go through your briefcase, your pockets - Everything.
Re:What is the point? (Score:5, Funny)
Not the last time I took the bridge from Detroit to Canada. The canada guy was a raging asshole, I almost thought he was the American guy and I went the wrong way for a moment.
Re:What is the point? (Score:5, Interesting)
Border/customs agents have the au-thor-i-tah to cause massive grief for just about anyone, on nothing more than a whim, with no checks on their power (In the US, for example, the constitutional requirement of probable cause and protecting against unreasonable search and seizure and such don't apply to their kind.), or recourse for their victims. Given the nature of the position, I'd expect it to attract the sort of people who would revel in that abuse... ie. raging assholes... no matter what country they work for.
And all national stereotypes aside, I'm pretty sure that no country on this earth has a monopoly on, or shortage of, raging assholes.
Re:What is the point? (Score:4, Informative)
In the US, for example, the constitutional requirement of probable cause and protecting against unreasonable search and seizure and such don't apply to their kind.
Sorry, you're out-of-date. Federal Appeals Court last year [uscourts.gov] ruled that border guards DO need probable cause to search such things as computers and phones under most circumstances. The only exceptions are circumstances which would also be exceptions away from the border.
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If you were a Korean you wouldn't feel that way.
Re:What is the point? (Score:4, Funny)
That must have been Scott. He's a dick.
Re: What is the point? (Score:2)
Re:What is the point? (Score:4, Insightful)
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If you had a coded paper letter in your suitcase, they can look at it, but they can't force you to tell them what it means.
Israel got a lot of heat for much lesser offense.. (Score:3, Interesting)
The practice of Israeli border-guards of demanding access to e-mail of some people wishing to cross into the country is rather disliked by /. [slashdot.org] and others [mondoweiss.net].
But the worst, that a non-cooperation would result in there would be an interrogation and a flight back to whence you came from. To actually be arrested and prosecuted for a crime over such a refusal is new... Should we begin divesting from Canada's corporations?
Re:Israel got a lot of heat for much lesser offens (Score:5, Insightful)
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cannot be denied reentry into Canada
Ummm. See summary.
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s'okay... it kind of threw me off too, as I usually expect to see "Quebeçois" or similar to describe someone from the province... but maybe that's just me.
Stupid summary... :)
Re:Bad French, man (Score:4, Interesting)
You're right about about the cedilla, only half right about the acute accents. To the language police it's: Québecois.
With their language use laws the language police in Québec also include the QPP (Quebec Provincial Police).
Interesting factoid: Tim Hortons is Canada's most popular coffee/donut fast food restaurant. It doesn't have an apostrophe. In Québec, an apostrophe would make it English, which would make it illegal (or at least illegal if the name was displayed bigger than the French equivalent). On their signs, they use a maple leaf instead of an apostrophe. The eye sees the apostrophe instead. (I'd call it a trompe l'oeill, which would be àpropos if not entirely accurate)
Re:Israel got a lot of heat for much lesser offens (Score:5, Insightful)
I don't know how it works in the US, but the Canadian government cannot refuse a Canadian citizen entry into the country. That's a very good thing.
Prison vs. refusal of entry (Score:3, Interesting)
I don't know how it works in the US, but the Canadian government cannot refuse a Canadian citizen entry into the country. That's a very good thing.
If the only destination in Canada, that such a citizen is allowed to go to, is prison, I doubt, many would prefer that to the (hypothetical) alternative of flying back.
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He's charged with obstruction. He might have spent a night or two in jail, but he's out on bail now. Even so, I'd much rather go to prison in Canada than the Dominican Republic. I'm pretty sure I'd rather possibly go to prison for a bit in Canada than become a stateless person as well.
Re:Israel got a lot of heat for much lesser offens (Score:4, Informative)
"I don't know how it works in the US, but the Canadian government cannot refuse a Canadian citizen entry into the country. That's a very good thing."
The right to return is part of UN Universal Declaration of Human Rights:
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More importantly to a Canadian, it's section 6 of the Charter of Rights and Freedoms.
Of course, section 8 is the part about being secure from unreasonable search and seizure, which should prevent being asked to give up passwords at the border....
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Why can he not? I'd certainly rather return to Dominican Republic
Unless he's a Dominican citizen, he can't just move to the Dominican Republic.
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" I'd certainly rather return to Dominican Republic, then go to Canadian prison (in winter!). "
Then you don't know very much about the DR. Once you leave the hotel compound, it's quite violent and corrupt.
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Did you know that in America they can, and do, the exact same fucking thing?
You want to fix this? Take it up with the governments and corporations who make up the New World Order. The rest of society apparently doesn't get a vote on the topic.
Your rank and file Canadian has no more ability to do anything about this than your average American or Israeli.
But if your governmen
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Should we begin divesting from Canada's corporations?
If it were up to the University of California, we'd be boycotting ourselves [thecollegefix.com]!
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"Should we begin divesting from Canada's corporations"
You should've been anyways, the Canadian economy is tanking like mad> Correction, if you weren't an idiot, you'd be buying heavy in Canada right now, since the exchange rate and relative weakness in the Canadian economy makes for some sweet low hanging fruit.
US Reasoning is Decent (Score:2)
In the US, if the cops can convince a judge that they know the evidence is on your device (say, they saw you recording when a murder happened), then they can compel you to testify your knowledge of the crime.
If they want to go looking on your device for information to incriminate you, then that's compelling testimony against yourself, so it's forbidden.
The first case is, of course, subject to lying cops saying, "we saw kiddie porn on his screen when we broke in", which will happen (the way they plant drugs,
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Your explanation isn't correct. The entire situation is unsettled law [youtube.com].
Border Search Exception (Score:2)
In the US, if the cops can convince a judge that they know the evidence is on your device (say, they saw you recording when a murder happened), then they can compel you to testify your knowledge of the crime.
If they want to go looking on your device for information to incriminate you, then that's compelling testimony against yourself, so it's forbidden.
The first case is, of course, subject to lying cops saying, "we saw kiddie porn on his screen when we broke in", which will happen (the way they plant drugs, shoot people and animals and lie about it, etc.). Then it's up to a non-corrupt judge to throw out such evidence based on the cops' lies. But if you're up to something illegal you have to weigh the contempt charge against the danger to yourself of disclosure, and if your password sucks or the judge and cops are corrupt, both.
Frustratingly, the USG claims that the rules for itself don't apply at the border - ostensibly it's operating outside the Law in those scenarios. What could SCOTUS really say about this? - they only judge the Law, not lawlessness.
The case law is different and evolving at the border, but still within the law. The general rule is that search and seizure must be conducted pursuant to a lawful search warrant based upon probable cause.
However, the First Congress, which (more or less) drafted the constitution, also gave customs officers full authority to search ships for contraband without a warrant.
There's a line of cases going back to that which basically means that the sovereign has a right to control what enters the country, and that
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Just remember, the 'border' extends 100 miles inside the US.
https://www.aclu.org/know-your... [aclu.org]
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IANAL, but my answer would be no (Score:5, Interesting)
To me, the owner of any electronic device that is password protected should not disclose the password to the device unless the authority has a warrant out for that person.
Re:IANAL, but my answer would be no (Score:5, Insightful)
They still should not be compelled to reveal the password. Even blanket immunity should not allow them to force you since it still might ruin your life or worse reasonably fear for your life and safety and ones close to you.
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Right, the way that this should work is like the british version of the 5th - that is you have the right to keep silent, and not tell the police/court something, but if you do keep silent and don't tell the police, then you can't use that in your defense later.
Basically, you have the right to not self incriminate yourself, but you don't have the right to be bolshy and just hide information for the sake of hiding it.
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Right, the way that this should work is like the british version of the 5th - that is you have the right to keep silent, and not tell the police/court something, but if you do keep silent and don't tell the police, then you can't use that in your defense later.
That's not how it works. You can, but the jury is allowed to be suspicious of your motives if you do.
Re:IANAL, but my answer would be no (Score:5, Insightful)
IANAL, but my answer would be no
And probably just as important in this case is YJMV - Your Jurisdiction May Vary. The UK is fascist country where I know it's illegal, I wouldn't bring any device I wouldn't unlock - I'd just make sure it's clean and I can download what I want once inside the country. The US is a fairly safe country thanks to the fifth amendment. The rest of the world? Dunno. Don't really care to research it either. If I was doing anything naughty I'd send it online or even in the mail. At least then they can't refuse me entry or any of that shit.
Re:IANAL, but my answer would be no (Score:4, Insightful)
Honestly, you should treat any border like this. Take only disposable devices. Access any needed data via a VPN once inside the country.
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My answer would be to just leave the damn devices at home.
Re: IANAL, but my answer would be no (Score:5, Insightful)
New phone feature idea: a settable password which, when entered, instantly wipes the phone. (Throws away the encryption keys and shuts down.)
Re: IANAL, but my answer would be no (Score:4, Insightful)
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then you get charged with destruction of evidence, or obstructing justice, or some other cobbled up charge, even if there was no "evidence" on the device in the first place, you can't prove that after it's wiped. Yeah, if you lawyer up you might be able to get out of the charges, but your life is already heavily disrupted at a minimum.
It's bad enough when they blatantly ignore things like the Fourth Amendment, but when they take it a step further (which is often when your standing policy requires you to ignore the Constitution), that is where we as citizens should draw the fucking line.
The problem is only rich citizens can afford to defend themselves anymore, regardless of illegality by the legal system or courts. It can cost a shitload of money to prove them wrong or clear your accusations.
The real problem is our justice system allows
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Destroying something that the authorities have expressed an interest in is a crime in many jurisdictions.
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To me, the owner of any electronic device that is password protected should not disclose the password to the device unless the authority has a warrant out for that person.
What about being required to open your locked briefcase at the border? Same deal? If the border officials are required to get a warrant to open your briefcase are you OK having them store your briefcase until they get a judge's ruling?
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I'm pretty sure that the next time I fly across int'l borders, if I even bring any electronic devices with me (I'll probably mail them, in fact) - the ones I would bring would be dummy devices. ones I could afford to lose and ones with 'happy happy, joy joy' bullshit on it.
you want to see my login? ok. here you go. that's A login. and as far as you know, its 'my' login. can I go now? thanks. have a nice day. ossifer.
(sheesh. freedom to travel securely with your private papers is a long-gone idea.
Thing everyone is missing (Score:3)
These are border guards. Technically you haven't entered the country, they don't need warrants to search anything. Now as someone pointed out they should have refused him entry not have him arrested.
Re:Thing everyone is missing (Score:5, Informative)
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It confused me because I'd always heard that the name for people from Quebec was "Quebecois."
"Quebecker" sounds like some kind of anti-French reactionary thing, kind of like how some feminists insist on non-standard spellings of gender-related words. (Before somebody flames me, I should also point out that I have no opinion of anything related to Quebec, and am only vaguely aware that there's some kind of language-related cont
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They can't refuse entry. He's a Canadian citizen. He can't be barred from re-entering Canada.
So they did the right thing by allowing him entry. And imprisoning him in a Canadian prison. Problem solved. (For limited definitions of "problem" and twisted definitions of "solved".)
Edible Phones (Score:5, Funny)
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Or a phone that self-destructs if given a particular password.
Re:Edible Phones (Score:4, Insightful)
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A better option is to simply back up your phone before you cross the border. Encrypt the backup and store it somewhere other than on your person, e.g. cloud storage or your own server somewhere. Then wipe the phone. You can now hand it over to the border agent to datarape and he won't get anything.
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Prior art. [apple.com]
Not saying they're delicious. They've always given me heartburn, and they bind you up something terrible, [wikipedia.org] but technically this concept is already on the market.
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I know, I do it on Android as well. Even before that my old Nokia feature phone could do it.
I wasn't suggesting it as a new feature, I was suggesting it as a course of action already available to most phone users. Same with laptops, create an imagine, sent it encrypted over the net and do a full wipe before crossing borders.
Re:Edible Phones (Score:5, Funny)
Surely an invention like this calls for an investment in chocolate coins.
Here's a real situation. (Score:3, Interesting)
Border guards demanded that she give them her password... They told her it was either not enter the country (and forfeit the deal) or give up her password. Her issue was that she was exposing privileged information to third parties who could, potentially, have illegally profited from the knowledge contained in that laptop.
At present, borders are dangerous legal limbo. This area needs deep oversight and clear paths for travellers to have recourse to constitutional rights.
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And then what happened? I need closure on that anecdote!
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There are ways of dealing with this scenario. The simplest being, don't keep the information on the laptop. After entering the country, use VPN or some other secure means of downloading the data.
Admittedly there are likely scenarios where this would be problematic (classified info?), but for most business related cases I would think this would be an acceptable workaround.
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There are ways of dealing with this scenario. The simplest being, don't keep the information on the laptop. After entering the country, use VPN or some other secure means of downloading the data.
Exactly, I have an IronKey drive that is password protected and self destructs after 10 wrong attempts. It's small and easily stored away from all the other jump drives etc. I carry it to increase its chance of being overlooked if some wants to search my machine. They can search my laptop and nothing important is revealed.
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>countries with broken legal systems
You state that like it's an exception to the rule...
Hmmmm.... (Score:3)
"Nawtzees, not just in Germany anymore..."
I don't remember (Score:3)
I'll make them wipe it. (Score:2)
If prompted to do this, I'd tell the wrong number and insist they're typing it in wrong. After they show me what they are typing, I'll remember that PIN was for something else and "remember" a new one. After 10 attempts, my device will wipe.
I keep a backup online and restoring is trivial once through customs.
I don't have anything criminal on my phone, but it is none of their business.
The poison pin ... (Score:5, Interesting)
... smart devices should have two (2) pass codes.
One of the pass codes allows the owner in.
The other pass code BRICKS the goddam phone. That's the one we give the authorities.
Then, it's like, "Hey you bastards, what did you do to my phone? You owe me a phone!!!"
Until probable cause has been established and a search warrant issued, evidence does not exist.
Right now, I can choose to brick my phone. Ir's mine. I am not compelled by any retention laws to maintain an archive for future requests to examine the phone.
The phone will have to be backed up on the cloud, of course, but authorities don't know that's been done; they don't know where it's been done, and they will have to slow things down in order to get a search warrant.
During that window of opportunity, I am at liberty to delete cloud-based stuff until such time I am formally made aware, by warrant, that my junk is evidence by way of probable cause.
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>The other pass code BRICKS the goddam phone. That's the one we give the authorities.
And then you go to jail for obstruction of justice ("Your honor, the defendant bought a model of phone known to have a self-wipe capability and deliberately gave the wipe password because examination of the phone shows evidence of a wipe instead of damage to the phone, as claimed.") and they start going over your life with a fine toothed comb and slam you with tampering with evidence charge if they do.
Do you and your kin
Re:The poison pin ... (Score:5, Funny)
The second password shouldn't brick the phone, it should take you to a second version of your phone's file system, which contains only the "happy birds" game, a collection of bad but sincere teenage poetry, and a spreadsheet listing the names of each member of Canada's federal government cabinet alongside a 6 figure dollar number.
Obstruction is a wild overstatement (Score:5, Informative)
Obstruction of justice is typically things like bribing witnesses, which is specifically mentioned in the law. Not refusing to unlock oa locked cell-phone, which the courts have held requires a warrant in other circumstances.
From the information in the article, this sounds like an attempt to scare a citizen into doing something.
Attempts to widen this particular law to cover less serious crimes get rejected by the courts: the very first case on the subject inCanII says (emphasis added)
[19] Moreover, an assertion that the mere attempt by an accused to identify an informant is a crime, fails to take into account that the types of conduct which constitute obstruction of justice, even though not fully articulated in the Criminal Code, are relatively well and narrowly defined in the law, and must remain so narrowly defined in order to have certainty in the law. Offences against the administration of justice have always included such conduct as attempting to influence a jury or to threaten a witness, or publishing sensitive information when a matter is working its way through the justice system, a general category of conduct which lawyers sometimes call an infraction of the sub judice rule. I have been unable to find a single suggestion anywhere in the law that an accused cannot take steps to identify a police informant; the court should act with restraint in opening new classes of obstruction of justice. Although obstruction of justice is an evolving concept, its main tendency is to narrow the categories of conduct which may constitute a crime rather than to enlarge them: Sunday Times. Recent examples of the narrowing of the categories include the removal of scandalizing the court as a matter of contempt, Kopyto, and the striking down of the publication ban on bail hearings, White.
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Glad I can quickly lock my Blackberry (Score:3)
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Further use requires a password.
Re:Glad I can quickly lock my Blackberry (Score:4, Informative)
The article is implying that this still might be open for discussion in Canada.
Surprisingly enough, you don't have to give up your passwords to USA customs. Upon entering or returning to the USA, they can search your device and they can even confiscate it for a period of days or weeks. However, they can't yet force you to give up a password or encryption key at the border.
https://www.eff.org/wp/defendi... [eff.org]
"If a border agent asks you to provide an account password or encryption passphrase ... you donâ(TM)t have to comply. Only a judge can force you to reveal information to the government"
From the TFA.... (Score:4, Interesting)
it doesn't appear that he was actually charged with any crime prior to be asked to divulge his phone password. It seems to me that there needs to be some sort of "probable cause" here and it doesn't appear that there is. There could be a very dangerous precedent set if police officers or boarder patrol or whomever are allowed to conduct an unlawful search for no apparent reason.Papers, comrade.
Re:From the TFA.... (Score:4, Informative)
Missing the bigger story here (Score:2)
Someone is still using a Blackberry phone?
EFF article on the subject of data and borders (Score:4, Informative)
While it is written specifically for the US, the EFF article Defending Privacy at the U.S. Border: A Guide for Travelers Carrying Digital Devices [eff.org] nonetheless provides a good discussion of your options in cases like this. It also discusses the various ways you can prepare your devices and data for the situation.
Let's get some sunshine (Score:5, Interesting)
It's amazing to read articles like this and nobody on the government side is named, just agencies and some "spokesperson". Name them. Somebody arrested this guy, and somebody is trying to prosecute him. Everybody involved in this needs to be named and publicly shamed. They need to be in a situation where they go home at night and their wife says "hey, why is everybody we know calling and asking why you're prosecuting some guy for not turning over a password? Is that even illegal? Why is this so important?"
Quit letting scum bags hide behind anonymity.
Right to remain silent where? (Score:4, Informative)
You have the right to remain silent.
In which countries? And to what extent in each country? This incident occurred in Canada, and the notice you're alluding to is the "Miranda warning", which is in use in a country other than Canada.
Re:Right to remain silent where? (Score:5, Informative)
You're assuming that he's alluding to the fifth amendment, the Miranda warning is just a notification of it, but according to the Canadian Constitution and the Canadian Charter of Rights and Freedoms you have the right to remain silent in Canada as well. You also have the right to an attorney (counsel).
Not that it matters when you're in Customs. Your constitutional rights (mostly) don't apply in customs, in the US or Canada.
Two publications from the BCCLA (BC Civil Liberties Association) you may be interested in:
https://bccla.org/wp-content/u... [bccla.org]
https://bccla.org/wp-content/u... [bccla.org]
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You're assuming that he's alluding to the fifth amendment, the Miranda warning is just a notification of it
Exactly. Each country phrases its notification of rights of the accused differently. For example, the police caution in Great Britain begins "You do not have to say anything." Use of a particular country's wording alludes to the statutory and case law regarding the rights of the accused in that country. For example, the police caution used in England and Wales since 1994 includes "it may harm your defence if you do not mention when questioned something which you later rely on in court", a concept of guilt b
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For example, the police caution used in England and Wales since 1994 includes "it may harm your defence if you do not mention when questioned something which you later rely on in court", a concept of guilt by omission that doesn't apply in the States.
Which seems like a pretty dangerous exemption to me, when you're faced with police who can add/drop charges as they like. You shouldn't need to cooperate with your prosecution at such an early stage in the case and where you are at such an extreme disadvantage. They're not sharing all of their evidence with the accused during the interrogation, so why should the accused be compelled to spill everything out of court?
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If your country does not afford an accused the right to remain silent, maybe it's time to overthrow the government. Luckily for Canada, it has the Canadian Charter of Rights and Freedoms [wikipedia.org], particularly section 11(c).
Yeah, and lucky for the United States, we have the Constitution! And the Bill of Rights!
(As you can see, ancient pieces of paper mean jack shit in the legal system anymore, so good luck with that fancy hyperlink you got there.)
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Well, in the US you do... if you are under arrest.
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They are not trying to get physical evidence from him. They're trying to make him tell them the password. You have the right to remain silent.
Uh, you do realize you usually only hear these words right before handcuffs are being put on, right?
Enjoy your vacation. And legal fees.
They always say Freedom comes at a price. What they don't tell you is it will cost an innocent citizen thousands to keep it if you are ever put in a position to defend it.
Of course, you tend to get pissed when forced to defend your Freedom in situations where you are not legally required, or have been illegally pressured to do so.
Re:misleading summary, inaccurate article (Score:4, Insightful)
It's only Quebecois if you're speaking French. En anglais, it's Quebecker.
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Sure its derogatory. Much the same as New Yorker or Scotsman. WTF?
Re:Simple response from me... (Score:5, Informative)
You should check with those organization's policies on the location/protection of information. You may find that you are not authorized by them to take that information out of the country, encrypted or not.
If you work for a company in the United States that does any kind of technical work, that company may have policies against your taking any of their IT equipment (and information) outside of the United States. Yes, even a cell phone, even to Canada. You might open them up to a violation of export control laws at a minimum.
Off the main topic but still of interest - even talking inside the borders of the US to a non-US person (a specific designation referring to a combination of non-citizenship, non-green card holder) about a technical subject can be a violation of export controls on technical information.
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I am thinking of the child who just ranted against America in response to Canadian violations of privacy.
Re:"I forgot" (Score:4, Funny)
Maybe you just need a nice quiet place with no distractions (like an outside window) where you can remember.
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How can they force you to give information you don't have?
By confiscating your phone until your memory returns.
Yeah, that guy crying in the corner sucking his thumb mumbling about his social feeds...he's only been here eleven minutes.
Clearly it's pretty effective. Don't even need a jail cell.