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.
good pub bad pub (Score:2)
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Re:Hoof Arted (Score:5, Insightful)
I absolutely agree that backdoors are a terrible idea. But what happened here however was perfectly fine to my mind. The police already had strong evidence linking the suspects to a crime, the evidence was reviewed by a court - and the suspects were only compelled to give up their passcodes after a judge, in a public and open court, determined there was genuine probable cause.
That's exactly how it's SUPPOSED to work.
Re:Hoof Arted (Score:5, Interesting)
Is it speech ? Or is it "Here's a search warrant, unlock the damn door".
If you really want to get finicky then the order can be changed to force him to enter the passcode himself and, under supervision by an oficer of the court, disable it - and he never has to reveal it.
It's not speech, it's a key - a judge has every right to compel you to hand over the key to private property when a duly justified search warrant is issued pursuant to probable cause.
Re:Hoof Arted (Score:5, Insightful)
Is it speech ?
It's speech. Compelling me to say one thing (password) means they can compel me to say anything, in which case why don't they simply compel me to confess and get it over with - no need for the password.
Or is it "Here's a search warrant, unlock the damn door".
It's not. It's "Here's a search warrant, now tell us the contents of your mind."
If you really want to get finicky then the order can be changed to force him to enter the passcode himself and, under supervision by an oficer of the court, disable it - and he never has to reveal it.
It's not speech, it's a key - a judge has every right to compel you to hand over the key to private property when a duly justified search warrant is issued pursuant to probable cause.
Many things are not one or the other but a mixture of both - the password which you call a key is also my private thoughts. If the key conflicts with my right to private thoughts, which should win? Should we take away private thoughts?
"You must say what the state tells you to say" is something out of a 1984 dystopia. "You must say what the state tells you to say" is thought-crime.
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Passwords/passcodes are not protected under the First Amendment, they are not considered speech. They may be protected, as a key on a keyring, under the Fourth or Firth Amendments. But those same amendments provide for a legally obtained warrant, if there is enough verified evidence in support of probably cause, to legally justify such a warrant.
If it's a legally obtained warrant, based upon valid proof of probably cause, negating the Fourth and Fifth Amendments, as the Constitution does provide for a legal
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Passwords/passcodes are not protected under the First Amendment, they are not considered speech.
They may be protected, as a key on a keyring, under the Fourth or Firth Amendments
Here's my problem.
If I have a key, I can be compelled to surrender it. I accept that.
With a PIN, Password, of combination, I have to say something.
If you can force me to speak the truth, then I have no right against self incrimination. In other words, forcing me to speak the truth of something I know, you can force me to confess. A
Re:Hoof Arted (Score:5, Insightful)
0000 (Score:2, Funny)
As much as I can't stand (Score:5, Insightful)
"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.
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"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.
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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.
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...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.
Re:As much as I can't stand (Score:5, Insightful)
A search warrant is different from a compel-you-to-incriminate-yourself warrant.
A search warrant cannot compel you to testify against yourself, but it absolutely can, and very often does, compel you to give police access to locations, items or data that can incriminate you. You can be compelled to give your breath, your fingerprints, your blood, your saliva. You can be compelled to provide access to your house, your car, the contents of your safe, or safe deposit box. You can be compelled to find and provide the (physical) keys to your stuff.
What the 5th amendment says is:
That's it. You cannot be compelled to be a witness against yourself. But you can be compelled to provide access to physical evidence, documentation (paper or electronic), biometric data or virtually anything else, even if you know full well that doing so will incriminate you.
A lot of people have theorized that passwords provide a loophole to this otherwise well-established case law, that because a password is information, that being required to give it is somehow being required to testify against yourself, that a password, an "information key" is different from a physical key because it's information. But that's a pretty weak argument. It's very hard to see how telling your password constitutes "being a witness". You're not providing any information about the crime, you're just handing over a key.
I suppose the one exception is if you can argue that the password itself, not the data on the systems it unlocks, or the data that it decrypts, actually incriminates you. If your password is "I killed sarah and dumped her body behind my grandmas old barn", then you can probably plead the 5th. Maybe. The prosecutor could just offer to immunize you from any incrimination that arises from the password itself, or anything that might be inferred or discovered from it (like Sarah's body) other than what is contained in the data it unlocks.
In general, though, I don't think that being compelled to provide your password is inconsistent with either the letter or the spirit of the 5th amendment. I think it'll take some more rulings, and it will be appealed up to the Supreme Court, but I'm pretty sure that's how it's going to shake out.
Re:As much as I can't stand (Score:5, Insightful)
Then there's the issue of memory: you then have to accept the inevitable conclusion, that the punishment for forgetting your password is a life sentence, because you can be held in contempt until you provide it. People have said it's unlikely to be forgotten if it had been used frequently; but once the device was seized it was no longer used frequently. I had a combo lock in my college dorm that I opened every day for the entire first semester. When I came back from winter break, I absolutely could not remember it and after hours of trying I had to cut it off and get a new one. And that was far less complex than most passwords.
So at the end of the day, if it's something you can forget, it's the contents of your mind that are being used to translate an indecipherable text, and thus should count as testimony as per previous 5A jurisprudence, and is unequivocally in the spirit of the 5th. Judges saying otherwise are once again finding a loophole that doesn't exist in order to let law enforcement run roughshod over constitutional rights.
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But you can be compelled to provide access to physical evidence, documentation (paper or electronic), biometric data or virtually anything else, even if you know full well that doing so will incriminate you.
Tell that to all the murderers who have failed to disclose where they have disposed of bodies, weapons, and other bits of evidence. They did not provide access whatsoever to that information. But I am sure they just didn't get the memo, and it's not that you're misinterpreting the 5th amendment. You absolutely do not have to help build the case against yourself. They're allowed to take physical evidence like blood, breath, and DNA because you do not have to be actively involved in that. You certainly a
Re:As much as I can't stand (Score:4, Insightful)
The key difference from a password is that in all those examples you provided, the things that you could be compelled to provide are also things which, if it came down to it, someone could just go and take without your cooperation. It might be messy, expensive and slower, but it's entirely feasible,
In the case of passwords, "feasible" is less clear. Theoretically any security can be cracked, but is that on the same level as cracking a safe when the owner refuses to give up the combination?
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"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.
Re:As much as I can't stand (Score:5, Interesting)
I'm not wasting time discussing rights or origin of freedom. There's no need for semantics, because I'm going to discuss raw logistics. The reality, in any words, is that the owner of a password has 100% control and everyone can only "ask" (even with a blowtorch) for it.
This imbalance will (sooner than later if so pressured) manifest itself, no matter how hard the law stomps its feet and yells.
Off the cuff example of manifestation: A password (digital key etc) can send itself off to a random acquaintance, with instructions not to contact you because "an unexpected duress has occurred" and to wait until it passes. The trigger can be a deadman switch or what you will. Obviously the password is now the new unknown.
You can't demand something I don't have. Even with a $5 wrench. Go fuck yourself with the piece of paper you thought was magic. It doesn't matter what you think of Shoulds or Who Grants What or anything because the password is GONE, words will change nothing, discussing it will change nothing, torture will change nothing, you could use a brain slug and it's still G-O-N-E.
They can probably stomp their feet about destroying evidence or something, if they're in a punitive mood. The lawyers can argue about unconfirmed allegations constituting evidence, or measures that were benign when placed, or whatever. Still gooo~oooone.
This is the same stupidity that led to warrant canaries.
Re:As much as I can't stand (Score:5, Insightful)
Legally, rights are just limits on government power. They are granted by the Constitution, which is kind of the government
In the context of the constitution, rights are presumed to be intrinsic to the individual. They are protected by the constitution.
This is somewhat a matter of belief - if people believe the above misconception that rights are granted by some kind of authority, it becomes the truth, and those who lust for power will seek to become that authority and decide what rights to bestow.
Re:As much as I can't stand (Score:5, Informative)
Legally, rights are just limits on government power. They are granted by the Constitution, which is kind of the government. Your rights are not guaranteed freedoms, rather freedom is implied within the scope of the limits that your rights represent to legislative overreach.
You're exactly, 100%, fucking wrong and retarded.
You've missed the entire fucking point of the declaration and the constitution and its amendments. Rights and freedoms are not granted by the government, they are natural and inalienable, with very fucking explicit language stating that the government has no business restricting said rights.
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It may say that, but is it true?
In another bit it claims that rights are granted by some man who nobody's actually seen and who a sizeable number of people don't believe exists.
Devils advocate (Score:3, Insightful)
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If *you* can close it, it's not really a backdoor, now is it?
compelling... story (Score:2)
So the authorities, have to ask the perpetrator to supply their own evidence.. way to streamline charging criminals.
Re:compelling... story (Score:5, Insightful)
might as well compel a confession and be done with it faster.
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Excellent point.
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Reading this essay http://www.uclalawreview.org/t... [uclalawreview.org] seems to echo what you're saying. It really does come down to whether it is a "key" or a "combination". A key is a physical object, and courts can certainly compel defendants to produce a key, but it becomes more complex when a court wants to compel someone to produce a combination, which is strictly "in their head", and not a physical thing at all. The basic argument is that the Bill of Rights was never intended to give a criminal the capability of devel
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I think this case would be a very poor test of Fifth Amendment protections, seeing as the defendants already outed themselves with their extortion attempt, and the evidence the prosecution have (mainly what the blackmailers communicated to the victim) pretty much guarantees that some or all of their electronic devices have incriminating files on them. This isn't a case of a fishing expedition, the prosecution knows where the fish is, it just doesn't have a hook to catch them with.
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Okay while that seems the case, the judge ruled that there's enough evidence to indicate that extortion did indeed take place.
If the court has enough evidence for that, they don't need what's on the phone.
And the fifth very much comes into play. If I have old pictures of 15 year old me, naked, stored on the phone, I become an accessory to distributing child porn if I give up my login credentials. It doesn't matter whether it's the police I distribute it to; zero tolerance laws allow no exceptions. Or I might have a recording of my grandfather on it, where he admits to killing Jimmy Hoffa.
The right to not incriminate oneself sho
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Or I might have a recording of my grandfather on it, where he admits to killing Jimmy Hoffa.
The right to not incriminate oneself should not be given up for short sighted goals. Even criminals must be given the same protection, or it's a sham.
Sorry, unless you are your own grandfather implicating him in the murder of Jimmy Hoffa is not 'self incrimination'.
If I have old pictures of 15 year old me, naked, stored on the phone, I become an accessory to distributing child porn if I give up my login credentials. It doesn't matter whether it's the police I distribute it to; zero tolerance laws allow no exceptions.
Possession: maybe. Distribution? no. A savvy lawyer could simply request immunity from prosecution for crimes unrelated to the search warrant in exchange for your cooperation.
If the court has enough evidence for that, they don't need what's on the phone.
The threshold for a warrant is "probable cause". The threshold for a criminal conviction is "beyond reasonable doubt". They are not remotely the same thing, nor should they be. Only a fool would suggest otherwise.
The only
That's going to be appealed (Score:5, Insightful)
The others are slowly working their way to the Supreme Court.
Until the Supreme Court rules nothing is going to happen.
That's a scary though (Score:2)
Blame 50 years of drug war (Score:4, Insightful)
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.
I fear they are right. (Score:5, Interesting)
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.
Re:I fear they are right. (Score:5, Insightful)
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.
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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.
Comment removed (Score:5, Insightful)
It's also dangerous (Score:5, Insightful)
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.
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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
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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.
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Abuse #1: Judge can hold you in contempt, in jail, essentially forever, for honestly forgetting phone password
Abuse #2: Cops replace your phone with different phone of same model. Use (very likely) different pin. Now, even if you recall the pin, you cannot unlock the phone. In jail for contempt indefinitely.
Abuse #3: Judge believes the phone is yours. You state it isn't. Court compels you to unlock the phone because "clearly" it must be yours. You cannot/do not. Jail.
There are clearly more ways this can be
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No it wasn't. It was to 1) exclude testimony obtained by torture and 20 to prevent prosecutors tagging on a perjury charge if you said you didn't do it but were found guilty.
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What if you wrote your diary in a code that only you knew? Could they compel you to translate it?
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The real question to answer is, "How can this be abused?"
If no abuse is happening, or even potentially possible, you're never going to get enough outrage to change things. Even me: I'd rather sit posting on Slashdot than waste time changing things that don't matter. So: what abuse are you worried about?
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It already was abused when demanding the owners reveal their passwords, pins, whatever. That is abuse.
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LEARN TO THINK! And if you are thinking, PROVE IT!!
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Easy (Score:3)
Prosecution: "This is your locked phone, provide the password"
Defendant: "I tried my password, it doesn't work"
Judge: "You are held in contempt until you give your password"
Indefinite detention without conviction--there's your abuse scenario. Took about 10 seconds.
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Except if a Judge decides he doesn't give a fuck, it doesn't matter how good your lawyer is.
An exact parallel to this case Has already happened, and it took 14 years for the guy to get out of jail. What kind of horrible crime must he have committed to be jailed for that long without a trail or conviction? It wasn't even a criminal case, but a divorce case! The wife said he hid $2.5 million overseas. He said he didn't and actually had lost the money in a bad investment. Judge didn't believe him, and put him
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Except if a Judge decides he doesn't give a fuck,
Then that sucks. In the case you linked to though, it seems there was good reason for him to be in contempt:
When "Primetime" interviewed Chadwick four years ago, he had finally started to cooperate with the court. So the judge was able to hire forensic accountants to try and track down the money. By that point, however, the trail had run cold and no new leads turned up. The accountant's task was also hampered at the time by Chadwick's refusal to sign authorizations that would have allowed for a more thorough search.
It appears he was not cooperating.
Re:Easy (Score:5, Insightful)
Except if a Judge decides he doesn't give a fuck,
Then that sucks. In the case you linked to though, it seems there was good reason for him to be in contempt:
The problem is that it doesn't matter what it looks like. You're not supposed to ever be jailed without a trail, and especially without any possibility for a trail, nor for a completely arbitrary and indefinite amount of time.
Let that sink in: If the judge believes you're lying, then whether or not you are, you can be jailed effectively forever, completely without a trial. The only way to even get a trial is to admit you committed perjury - that is about as clear a case of coerced self-incrimination as I can think of, and precisely what the 5th Amendment is supposed to protect you from. And, if you are actually telling the truth, it is impossible for you to ever prove it, as you will never get a trial at which to do so.
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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.
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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
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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.
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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
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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
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Suggestion: Duress Passcode (Score:4, Interesting)
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.".
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That's called obstruction of justice and tampering with evidence.
What evidence? We're assuming there is evidence to be found on the device already? We only have suspicion and the power to compel a person to action against themselves by revealing knowledge stored in their heads.
We're assuming there is enough evidence that there is evidence on the device to constitute probable cause for issuing a warrant. And, yes, in that case use of a duress password to wipe the device would constitute destruction of evidence. If the police arrive at your house with a search warrant and you set the house on fire to prevent it from being searched, that's obstruction and destruction of evidence.
Of course, if obstruction and destruction of evidence are lesser crimes that what you committed and kno
A simple litmus test (Score:5, Insightful)
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.
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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.
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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]
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It may not be that clear cut. What if the prosecution has a recording of you saying "And I've written the evidence in my diary!" In that case, you have already admitted that you wrote the evidence in your diary, and now the court desires to have the encoded content decoded. Now maybe that's still a "combination" in Fifth Amendment terminology, in other words, something that is completely in the defendant's head, but it does mean that the defendant has at least already partially incriminated themselves.
And t
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Does the prosecution have proof that the recording was taken under oath (making the statement a crime if false) or some proof that the statement was true? If not, you might be able to prove the extortion, but that shouldn't allow you to force them to incriminate themselves further.
It's a big red herring (Score:3)
And if the passwords are handed over, (Score:4, Insightful)
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.
This is not a new doctrine. (Score:2)
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.
NSFW. I think. (Score:2)
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If the police have strong evidence that the stolen diamonds are in your wall safe, and that the things is rigged to blow if they try to crack it - do you think a judge could NOT compel you to give up the combination ?
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And then the judge would be quite happy to help you refresh your memory with a few days off work for some much needed R&R at a resort of his choosing at taxpayers expense by means of a contempt of court finding.
Probable cause? (Score:2)
Sounds like they have pretty strong probable cause, so this would be more along the lines of withholding evidence / refusing a search warrant than the 5th.
I mean, this seems like the proper way to do it rather than to, I don't know, try to force phone manufacturers to unlock it for them [wsj.com]...
Re:Aaand (Score:5, Insightful)
Right. A case about two idiots blackmailing a woman with nudes is the thing that would upset the founding fathers.
"The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all." -- H. L. Mencken
The mass surveillance over the US population conducted by the federal government over the last decade was a-ok ...
You are implying that supporters of human rights are hypocrites. I don't think so. Those of us objecting to this violation of 5th are the same people that objected to the mass surveillance.
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The entire question hinges on whether or not surrendering your phone's contents is self incrimination. If they want to search your house you can't stop them. They can read your journal. Essentially they're saying the contents of your phone is like a filing cabinet they can go through. I tend to agree with you but I can see where they're coming from.
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It's exactly like a filing cabinet. You can refuse to give them the combination, but in time they will cut through it. The phone has a similar protection, but they don't know how to cut into it. What phones really need is a delete combo so that you can give them a number that wipes out key areas but unlocks the phone.
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What phones really need is a delete combo so that you can give them a number that wipes out key areas but unlocks the phone.
Destruction of evidence carries pretty substantial punishment. If I remember correctly, the prosecutor would also be allowed to draw the conclusion that is the worst for the person who caused the destruction.
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That's no different from them planting evidence in your house or car. The prosecutor and police get the benefit of the doubt in court from the start.
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Re:Bullshit (Score:5, Informative)
What're they gonna do - torture them for the info?
No, but they can be held in jail indefinitely for refusing to obey the judge's order.
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What're they gonna do - torture them for the info?
No, but they can be held in jail indefinitely for refusing to obey the judge's order.
Not indefinitely. I don't remember the case exactly, but a few years ago it was ruled (in one of the federal appellate courts, and SCOTUS let it stand, IIRC) that once it is clear that you are never going to provide the information, that you prefer to stay in jail forever, then the detention no longer serves any legitimate purpose and you must be released. But that could be years, and you will rot there until the judge (or an appellate judge) is convinced that you're willing to take the secret to your grave
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denied even the most basic of medical care
US prisons are the only place in America you can get free health care....
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US prisons are the only place in America you can get free health care....
You can get free healthcare if you join the army.
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Examples of free health care I have seen in an American prison include a man who complained of blood coming from his rectum and was told not to worry. Hours later his stomach aneurysm ruptured. He was allowed to walk to the med unit where they left him on the floor in a dark room bleeding without even telling him that help was on the way. About 30 minutes later he was loaded into the ambulance. By the time he reached the hospital he required 4 units of whole blood immediately with more during the emergency
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The legal system starts from a state of presuming the innocence of the accused. A person on trial for a criminal offense has no expectation that they must "prove [their] innocence"; it is the job of the state to prove the accused is guilty of the charges.
In other words, it's not the password itself that is problematic. The issue lies in compelling someone to provide information that, effectively, causes the person to make testimony (whether for or against themselves, it does not matter).
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Perhaps the prosecution is hoping that the defendants, fearing that unlocking the devices will incriminate them further, will strike a plea agreement.
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It's like refusing to allow the police to search your home, even after they have a warrant.
At which point they'll kick the door in, if they can, but you aren't compelled to graciously welcome them inside. Let them break into the phone if they have a warrant and are capable. One shouldn't be compelled to unlock the door.
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It seems in this case the only evidence lacking is the actual pictures that the accused were attempting to blackmail the victim with. The prosecution appears to have enough evidence to demonstrate that an extortion attempt was made. I suppose this could effect what the accused are ultimately convicted of, since attempting to extort someone even if you don't actually intend on carrying out the threat is still illegal, but probably is a lesser charge than actually possessing materials with which to carry out
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A judge CAN compel you to testify if you already started testifying about the case. I haven't read the details but this may be the case here.
You have to plead the Fifth from the very beginning (you don't talk to the cops, you don't talk during trial) and you have to plead it for every line of inquiry.
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You have to plead the Fifth from the very beginning (you don't talk to the cops, you don't talk during trial) and you have to plead it for every line of inquiry.
Yeah, pretty sure that's bullshit. Otherwise, a cop can ask you what you had for breakfast, and if you tell him, you're forced to answer every other question you're asked from then on? So absurd it's laughable.
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And the prosecution is welcome to force their way into the phone any way they can, but they can't compel you to give them information.