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Court Rules In 'Sextortion' Case That Phone PINs Are Not Protected By Fifth Amendment (cnn.com) 410

An anonymous reader quotes a report from CNN: Can authorities access potentially incriminating information on your phone by compelling you to reveal your passcode? Or is access to your phone's secrets protected under the Constitution? The answer, at least in an extortion case involving bikini-clad models, social media celebrities and racy images, is that phone passcodes are not protected, a judge ruled Wednesday. The case stems from the arrest of Hencha Voigt, 29, and her then-boyfriend, Wesley Victor, 34, last July on charges of extortion. Voigt and Victor threatened to release sexually explicit videos and photos of social media star "YesJulz," whose real name is Julienna Goddard, unless she paid them off, according to a Miami Police Department report. Both Voigt and "YesJulz" are big names on social media. Voigt is a fitness model and Instagram celebrity who starred last fall on "WAGS Miami," an E! reality TV show about the wives and girlfriends of sports figures in South Beach. As part of the ongoing investigation into the case, prosecutors have sought to search Voigt's and Victor's phones and asked a judge to order the two to give up their phone passcodes. Prosecutors have obtained the text messages sent to Goddard, but they have been unable to bypass the passcodes on the suspects' phones -- Voigt's iPhone and Victor's BlackBerry -- to search for more evidence. As such, prosecutors filed a motion asking a circuit court judge to compel the defendants to give their passwords to authorities. A judge on Wednesday ruled on behalf of prosecutors and ordered Voigt and Victor to give up their phone passwords, according to Bozanic, Victor's attorney.
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Court Rules In 'Sextortion' Case That Phone PINs Are Not Protected By Fifth Amendment

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  • is still pub
  • 0000 (Score:2, Funny)

    by Anonymous Coward
    make sure to try it 10 times...
  • by clonehappy ( 655530 ) on Wednesday May 03, 2017 @06:30PM (#54351461)

    "Social Media stars" (whatever the fuck they are), and would like to see them all put in prison on charges of assisting cultural suicide, no one should be compelled to give up evidence that incriminates themselves, ever. It's a basic right. Rights aren't granted by the government, but you wouldn't know it from how out of fucking control they are these days.

    • by MrKaos ( 858439 )

      "Social Media stars" (whatever the fuck they are), and would like to see them all put in prison on charges of assisting cultural suicide,

      Along with banning them from the net for all time.

      Perhaps we should be considering an IQ test for potential netizens. People who are too dumb or trollish only get read access to the net until they are educated enough to use it properly.

      Fuck them for opening the door to this legal precedence.

      • Unfortunately such a law would have to be passed by politicians - and they're not about to let their own incompetence deny them access to such a potent bully pulpit.

    • ...no one should be compelled to give up evidence that incriminates themselves, ever. It's a basic right.

      So you believe that search warrants should never be allowed? That would have a significant effect on the ability to prosecute crimes.

    • "Social Media stars" (whatever the fuck they are), and would like to see them all put in prison on charges of assisting cultural suicide

      We need a social media Golden Rule: Tweet others as you would be tweeted.

  • Devils advocate (Score:3, Insightful)

    by Dorianny ( 1847922 ) on Wednesday May 03, 2017 @06:36PM (#54351487) Journal
    If courts can authorize the search on a device but it is technically impossible because the suspect can't be compelled to unlock the security than it only strengthens the law-enforcement case that they need legislation mandating a back-door into devices. One that can be abused without your knowledge or consent of courts
  • "As such, prosecutors filed a motion asking a circuit court judge to compel the defendants to give their passwords to authorities."
    So the authorities, have to ask the perpetrator to supply their own evidence.. way to streamline charging criminals.
    • by zlives ( 2009072 ) on Wednesday May 03, 2017 @06:54PM (#54351551)

      might as well compel a confession and be done with it faster.

  • by chromaexcursion ( 2047080 ) on Wednesday May 03, 2017 @06:40PM (#54351507)
    This isn't the first case of this. Nothing is going to happen any time soon.
    The others are slowly working their way to the Supreme Court.
    Until the Supreme Court rules nothing is going to happen.
    • given that by the time this makes it up to SCOTUS it'll have 2, maybe 3 Trump nominees. Trump has not shown himself a fan of the 5th (or any other constitutional right) unless he's invoking it.
      • by swb ( 14022 ) on Wednesday May 03, 2017 @10:00PM (#54352209)

        Blame the gradual erasure of search and seizure on the decades long drug war. That's what's caused the erosion of civil liberties, not Trump's one appointment (who hasn't really ruled on anything) or potential future nominee for the court.

        People aren't getting raked over the coals for their private information just recently, it's been going on for decades as law enforcement, district attorneys and their political supporters have green lighted aggressive drug searches which have given the courts many opportunities to rule in favor of the police, like rain eroding a sand castle.

        IMHO, our protections from search and seizure are all but gone. Civil forfeiture is still alive and well, for crying out loud. The NSA hoovers our data, local police use Stingrays, etc.

        No Supreme Court appointments by any party are going to change any of this, they're mostly just reinforcing 50 years of progressively worse precedence.

  • by rickb928 ( 945187 ) on Wednesday May 03, 2017 @06:48PM (#54351525) Homepage Journal

    This is discovery. The defendants threatened to distribute photos etc, from unspecified devices and sources. The prosecution wishes to confirm that such photos etc. exist, for without them there is no case. Defendants refuse to permit discovery.

    If this were paper files in a locked box, the prosecution would be permitted top saw the boxes in half. The media should not change the law. That a document exists is generally not a Fifth Amendment issue. That the document is purely electronic need not matter.

    I've changed my mind on this. On a fishing expedition, prosecutors should be denied secured material they cannot specify. In this case they seem to know just what they are looking for, and where it is. The defense cannot reasonably claim innocence based on the lack of evidence when it is plainly able to prove the lack.

    But that's too easy.

    • by networkBoy ( 774728 ) on Wednesday May 03, 2017 @06:51PM (#54351539) Journal

      They're welcome to saw my phone in half to get at the files on the flash chip too :)

      I get the point you're making about discovery, but this *still* violates being a witness against yourself. In discovery the police/DA can't put a piece of paper and a pen in front of you and require you write a confession, even if you were caught red handed.

      • I get the point you're making about discovery, but this *still* violates being a witness against yourself.

        It is being a witness against yourself when the ownership of the phone is in doubt.
        In this case, if they know the phone is hers, they just want to see what is on your phone. That's not testifying against yourself, it's like looking into your diary, which is also fair evidence.

        The real question to answer is, "How can this be abused?" If there's some serious abuse potential, we should worry. In the current case, I don't see any abuse happening.

        • by nightfire-unique ( 253895 ) on Wednesday May 03, 2017 @07:05PM (#54351583)

          All Americans have the legal right to remain silent at all times, and guilt can never be inferred based on the execution of that right.

          Honestly, that's all that needs to be said here.

          The constitution is razor sharp on this issue. You cannot ever be compelled to say anything in your defense, whether it's a password, a location, a date, an apology, the number of languages you speak, or your favorite color.

          Any ruling that a defendant must "speak up" to prove their innocence is unconstitutional.

          • by Sycraft-fu ( 314770 ) on Wednesday May 03, 2017 @11:53PM (#54352521)

            The problem with "You have to give us your password/PIN/combo/whatever or be in contempt and go to jail," is that even if you are ok with any constitutional issues (or perhaps are from a country without such protections), it is still open to a big issue: What happens when someone forgets? People forget their passwords ALL the time. Anyone who's worked in IT can tell you and yes, this includes things like phone PINs. Problem is with a law like this, you can go to jail, forever. The police demand access to something of yours that is encrypted, you can't remember the password, you get thrown in jail until you give it up. Since you legitimately can't remember, that is the rest of your life.

            This gets even more problematic when you consider that good encryption looks just like randomness, and good stenography is undetectable. So a random bit of data in a deleted area on the harddrive: Hidden encrypted data, or just leftover garbage from something the system did? All those high res photos of random shit nobody cares about: Just your hobby and data hoarding, or used to hide encrypted stego data? There is literally no way to prove which, presuming that it was done right. So if the police can say "Decrypt this or else," and it isn't actually anything encrypted, or at least not something you have the key to, then there's a real problem.

          • by rtb61 ( 674572 )

            There are profound legal reasons for not being required to remember anything. What if they ask you as question, for which you do not know the answer, are they entitled to punish you upon the basis they think you know the answer and thus imprison you for the rest of the life or until you can guess the answer you do not know. How about if they go to their evidence bin and grab the wrong phone and your password does not work, which you can not prove, until they can unlock the phone, their error, the rest of yo

          • The constitution is razor sharp on this issue. You cannot ever be compelled to say anything in your defense, whether it's a password, a location, a date, an apology, the number of languages you speak, or your favorite color.

            It doesn't, actually. It says you can't be compelled to be a witness against yourself, which in no way implies that you can't be compelled to provide access to locations, documents, etc., that may incriminate you. This is very, very well-established law. The fact that in this case the key is information rather than a physical object doesn't fundamentally change anything. The one exception, I think, is if the password itself is incriminating. In that case providing it would be witnessing against yourself.

        • What if you wrote your diary in a code that only you knew? Could they compel you to translate it?

      • And the whole secure in your papers thing, even if no physical sheet of dried wood pulp/linen pulp/ papyrus/ scraped sheepskin/etc is used.
        • And the whole secure in your papers thing, even if no physical sheet of dried wood pulp/linen pulp/ papyrus/ scraped sheepskin/etc is used.

          You might want to read the rest of that amendment.

      • The jurisprudence I've read suggests that SCOTUS has taken a balanced approach, not wishing to turn the Fifth Amendment into a literal "get out of jail free" card. The electronic age has certainly introduced a huge complication, and it's likely that all of this is going to end up back at SCOTUS, who is going to have to try to apply two hundred years of jurisprudence to what is a rather new problem.

        Not entirely new, of course. At least theoretically, unbreakable or near-unbreakable ciphers have been possible

    • Let's make this absolutely fucking crystal clear: the prosecution has every single bit of data from those phones in its possession. What they're demanding is that the defendants help them interpret it, and that's what violates the defendants' rights.

    • by msauve ( 701917 )
      " prosecutors should be denied secured material they cannot specify. In this case they seem to know just what they are looking for,"

      Almost. They don't know it exists, let alone on the phone. They don't know that there's a bass, let alone that it lives in the lake they want to fish. So, it is a fishing expedition.

      "...paper files in a locked box, the prosecution would be permitted top saw the boxes in half..."

      And they can do whatever they want to try to retrieve the data from the phone. That's completely d
    • This is discovery. The defendants threatened to distribute photos etc, from unspecified devices and sources. The prosecution wishes to confirm that such photos etc. exist, for without them there is no case. Defendants refuse to permit discovery.

      It would depend if the documents are encrypted or not. If the passcode is merely to provide access to a locked but unencrypted part of a device, then you might have a point. But if the documents are encrypted that means that the documents do exist, but as ciphertext, and certainly the courts should have access to that ciphertext. But if information is required to transform that ciphertext into plaintext and that information is stored only in a defendant/suspect's head, then the Fifth Amendment should app

    • I think it is shortsighted as is much of our case law in similar areas. As someone with a bad memory, my electronic files are part of my cyber enhancement. They are not yet encased within my head, but they are very much part of my definition of self. I am one of those who believes that we need to be working to learn to enhance ourselves as quickly as possible in order to stay relevant. It is vital in order to not stifle this development that contents of the chips we eventually put in our head and use to aug
  • by mysidia ( 191772 ) on Wednesday May 03, 2017 @06:48PM (#54351527)

    I suggest Apple should introduce various secondary "Red Herring" passcodes which users can set.

    If a secondary passcode is entered, then a User-configurable action occurs. They may be allowed to unlock the phone after contacting Apple's servers to determine if the Passphrase is actually the user's primary passphrase or not.

    If a passcode marked as duress is attempted to be used to unlock the phone, then keys in the secure enclave will be quietly and irretrievably corrupted; Notice of what has happened will not be shown on the screen until either contact is completed with Apple's servers, ensuring that the phone completed its command sent to Apple servers to successfully overwrite the backup version, Or another attempted passphrase is entered; The message displayed will appear to indicate that a Correct passphrase has been entered, However, it will show an error "Error 53: Valid unlock code accepted, but system storage is corrupt, cannot boot.".

    • Re: (Score:2, Interesting)

      by Anonymous Coward
      No, not duress passcodes, duress fingerprints. A passcode requires action on your part. Either you are typing it in or you told someone else what to type in. That definitely qualifies as destruction of evidence. But a fingerprint, all you have to do is nothing. Let the other party forcibly select a finger and swipe it on the sensor. You are under no obligation to speak up and say "oh btw, you don't want to use that finger that you selected".
  • by Sydin ( 2598829 ) on Wednesday May 03, 2017 @06:56PM (#54351555)

    Take the exact same case, but replace the phone with a safe, and the PIN with the combination to the safe's lock. In this instance, the 5th Amendment absolutely protects from being compelled to unlock the safe or provide the combination to open the lock. Now having said that if the police have a warrant for the contents of the safe because there is reasonable suspicion evidence pertaining to the investigation is contained within, they are absolutely free to seize the safe and attempt to open it via other means (locksmith/physically cutting/breaking the safe open/etc). In the same manner, if the police have a warrant for the contents of the phone's memory in this case, they are within their rights to attempt to guess the PIN or break the encryption on the phone. You could argue that's much harder than breaking into a physical safe - and that is usually the case - but frankly that's not the defendant's problem. Just because it's hard for the police to obtain potentially incriminating evidence does not compel one to surrender it. This is a flagrant violation of the 5th Amendment, and I cannot believe courts continue to skirt such a fundamental part of our legal system because police are throwing a fit about encryption being unfair.

    • The litmus test is that you only have rights when it doesn't matter. If an impenetrable safe existed the courts would find legal grounds for why the 5th Amendment didn't apply. They'd only step in if there was QA issue, e.g. if the government demanded evidence be produced out of thin air since this would result in efficiency, though again if it mattered enough to the government the courts would sanction torture, imprisonment without trial, or pre-trial execution.
    • Actually with regard to a safe the owner can be compelled to divulge the combination.

      This is the precedent under which most of these decisions are made, the judge equates the password or pin code to a safe combination and using prior supreme court precedent that defendants have no 5th amendment protection in a combination are then compelled to divulge the combination/password/pin.

      • by The Rizz ( 1319 )

        the judge equates the password or pin code to a safe combination and using prior supreme court precedent that defendants have no 5th amendment protection in a combination are then compelled to divulge the combination/password/pin.

        Completely untrue in just about every way.

        The Supreme Court actually has never directly ruled on such a case, but have used lock combinations as an example case in other rulings. In those rulings, they have consistently implied that one would not have to divulge the combination. As stated in the Supreme Court ruling, “the expression of the contents of an individual’s mind is testimonial communication for purposes of the Fifth Amendment."

        More info here: http://blogs.denverpost.com/cr... [denverpost.com]

  • by Patent Lover ( 779809 ) on Wednesday May 03, 2017 @07:03PM (#54351577)
    The prosecution already has evidence that the couple sent extorting texts. It doesn't matter whether an extortionist actually has possession of extorting material, it only matters that they were trying to get money for such. Perhaps the prosecutor wants some jack material?
  • by jenningsthecat ( 1525947 ) on Wednesday May 03, 2017 @09:10PM (#54352021)

    what's to stop the authorities from planting evidence on the phones? Yes, I know that's unlikely in this case - but entirely aside from the constitutional violation, this precedent just begs to be misused by LEO's, many of whom would much rather chalk up a 'win' at the expense of innocent citizens than invest the time and sweat required to either uncover the truth or determine that they can't do so. This is a really BAD idea.

  • Since the 70s SCOTUS has used something called the "act of production doctrine", which basically says that you have to produce some piece of evidence under subpoena unless the act of complying in itself bears on your possible guilt.

    So a court can subpoena the contents of your safe, even though those contents will incriminate you. They can't say, "Deliver us all documents related to your bribing of an official," because to comply with that demand is to admit guilt.

  • I went to the YesJulz instagram page. Now I feel like I was this close to viewing kiddie pr0n. Deleting browser cache.

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