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The Courts Privacy Security

Pennsylvania Supreme Court Rules Police Can't Force You To Tell Them Your Password (eff.org) 73

Posted by BeauHD from the protected-testimony dept.
An anonymous reader quotes a report from the Electronic Frontier Foundation: The Pennsylvania Supreme Court issued a forceful opinion today holding that the Fifth Amendment to the U.S. Constitution protects individuals from being forced to disclose the passcode to their devices to the police. In a 4-3 decision in Commonwealth v. Davis, the court found that disclosing a password is "testimony" protected by the Fifth Amendment's privilege against self-incrimination. EFF filed an amicus brief in Davis, and we were gratified that the court's opinion closely parallels our arguments. The Fifth Amendment privilege prohibits the government from coercing a confession or forcing a suspect to lead police to incriminating evidence. We argue that unlocking and decrypting a smartphone or computer is the modern equivalent of these forms of self-incrimination.

Crucially, the court held that the narrow "foregone conclusion exception" to the Fifth Amendment does not apply to disclosing passcodes. As described in our brief, this exception applies only when an individual is forced to comply with a subpoena for business records and only when complying with the subpoena does not reveal the "contents of his mind," as the U.S. Supreme Court put it. The Pennsylvania Supreme Court agreed with EFF. It wrote: "Requiring the Commonwealth to do the heavy lifting, indeed, to shoulder the entire load, in building and bringing a criminal case without a defendant's assistance may be inconvenient and even difficult; yet, to apply the foregone conclusion rationale in these circumstances would allow the exception to swallow the constitutional privilege. Nevertheless, this constitutional right is firmly grounded in the "realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent."
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Pennsylvania Supreme Court Rules Police Can't Force You To Tell Them Your Password More

Pennsylvania Supreme Court Rules Police Can't Force You To Tell Them Your Password

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  • The police will have a chat down.
    Suggest a person will feel better if they show the files, grant access.
    That the police already know "everything" from isp use due to police work over months/years..that all the https did nothing.
    Use a fancy VPN? That VPN did nothing as the nation the VPN in "had" to help police.
    That it will look better and be of some use to tell the police the password... that some deal can be done.
    Its not a demand, not a legal request, just something to think about.
    Not granting a p

    • "I want to speak to a laywer".

      • Re: (Score:3)

        by rtb61 ( 674572 )

        As for the prince of paedo's I can't remember is a legal excuse and not a defence. No act of memory can be forced under law, they can ask, they can not demand or legally force it. There is no way for you to prove you can not remember it and you can always give the wrong one.

      • Re: (Score:2)

        by AHuxley ( 892839 )
        They will just keep asking while the laywer is on the way :)
        Hours of "background" chat about education, life, friends, sport, small town USA ... and then drop in the suggestion about giving the pw...
        Read up on how nations outside the USA like to work on the "ask" part:

        Key disclosure law
        https://en.wikipedia.org/wiki/... [wikipedia.org]

        Read down for terms like "Failure to comply is punishable"
        "A person commits an offence if the person fails to comply with the order."
        "Failure to comply incurs"
        "Failure to comply is
        • Irrelevant.

          The article says in the U.S. "there is no law" in this regard... but SCOTUS has ruled on the issue and has consistently held that "a product of the mind" (i.e., a password) cannot be compelled.

          I am just curious why Pennsylvania had to rule on it, considering that SCOTUS already has.

          • "I am just curious why Pennsylvania had to rule on it, considering that SCOTUS already has."

            A couple of reasons. The primary one being that Florida had ruled that the suspect did NOT have the right, under the fifth amendment, to refuse to turn over his password. This decision (2016) comes after the SCOTUS decision (1998)... and a Pennsylvania decision (2015) on the same subject!!!

            As usual, most precedent-setting cases where Constitutional rights are trampled involves a low-life that *no-one* - excepting m

            • A couple of reasons. The primary one being that Florida had ruled that the suspect did NOT have the right, under the fifth amendment, to refuse to turn over his password. This decision (2016) comes after the SCOTUS decision (1998)... and a Pennsylvania decision (2015) on the same subject!!!

              That was my whole point. It is a Constitutional (5th Amendment) issue, so SCOTUS presumably has authority over State or lower courts. Those lower court rulings should not have any relevance.

              (I refer here to mainstream legal convention; some people argue that Constitutional issues only apply to the Federal government, despite Amendment 14, Section 1: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.")

              Oops... my mistake. I see that

          • Re: (Score:1)

            by AHuxley ( 892839 )
            Re 'The article says in the U.S. "there is no law" in this regard"
            Police can keep suggesting, chatting, talking until a lawyer arrives.
            Suggestions of understating life, enjoying the same sport... that talking will help in come way for the person ... that talking now can not be bad for any later legal issues...
            That police can help later if given information quickly...
            All kinds of talk and suggestions....
            About conditions later..
            The constant friendly chat by police does not stop until the lawyer gets to

        • As soon as you mention the word "lawyer", the police are obligated not to ask any more questions, and anything that is disclosed as an answer to a question is inadmissible after that.

          This does not apply to anything volunteered without a question being asked, so once you've said you want a lawyer, keep your bloody mouth shut.

          (FWIW this only applies in the States. IANAL and this is not legal advice.)

      • Just wait for a future US Supreme Court that decides the 1966 Supreme Court made a flawed decision in Miranda vs Arizona. Then, *poof*, that legal protection will disappear. As if your legal protections haven't already disappeared with the conversion to a plea bargain legal system.

    • And your lawyer (you did ask for a lawyer to be present, didn't you?) will politely point out that you don't have to give them your password.

      Noting that in this case. it does appear that you are having to plead the 5th, so "My client won't divulge their password as doing so might incriminate them".

      • Not answering police/FBI questions is not the same as pleading the 5th, which can be a response to a judicial ORDER to speak.

        "Am I being detained or am I free to go?" Persist until you get an answer, then either leave (without comment) or "I want to speak to a lawyer". NB: "a" laywer, not "my" lawyer. Repeat until free to go or they provide one.

    • Re: (Score:2)

      by MrKaos ( 858439 )

      The gov is not taking a right away anymore, the gov is asking for the giving of information after a very friendly chat.

      Thanks officer. With respect, we're all human and my understanding of your duty as an officer of the law suggests that any evidence I give may be used against me however that doesn't mean it may be used for me.

      Under the circumstances I am confused so it may be more wise for me to exercise my right to silence until I can speak to my lawyer.

      Then shut up, say nothing else until your lawyer arrives other wise you are inconsistent about exercising your right to silence and therefore anything you say can b

      • Re: (Score:2)

        by AHuxley ( 892839 )
        Re "Then shut up, say nothing else until your lawyer arrives"
        The best chats begin so slowly. Life, school, background. To better understand the "mix up" until the lawyer arrives...
        Name... just a few more questions...
        A few hours later the gov gets what it wants. The "free" lawyer finally arrives..

        • Re: (Score:2)

          by MrKaos ( 858439 )

          Re "Then shut up, say nothing else until your lawyer arrives"

          The best chats begin so slowly.

          Which is why you don't. You have to be *consistently* exercising your right with intention. If you have to say something say "Thanks for the interest officer, I'm exercising my right to be silent", then be silent.

      • Re: (Score:3)

        by tsstahl ( 812393 )

        IIUC any evidence that you share with the police that may have been used for you, in your defense, becomes inadmissible and then your defense cannot use it to defend you.

        Not at all the case (in the USA). If you told a cop you were at XYZ the whole time a thing happened at JKL, that doesn't suddenly become unknowable. What it does mean is that the cop will not testify to anything exculpatory you said/did. The cop is the prosecution's witness, not yours. Slight misunderstandings like this only underscore your point to STHU and wait for an attorney. :)

        • Re: (Score:2)

          by MrKaos ( 858439 )

          IIUC any evidence that you share with the police that may have been used for you, in your defense, becomes inadmissible and then your defense cannot use it to defend you.

          Not at all the case (in the USA). If you told a cop you were at XYZ the whole time a thing happened at JKL, that doesn't suddenly become unknowable. What it does mean is that the cop will not testify to anything exculpatory you said/did. The cop is the prosecution's witness, not yours. Slight misunderstandings like this only underscore your point to STHU and wait for an attorney. :)

          Thanks for clarifying things!

  • Interesting (Score:4, Interesting)

    by Ryzilynt ( 3492885 ) on Thursday November 21, 2019 @09:00PM (#59441242)

    It does not however state that you cannot use Graykey to access the phone. ( it's real I've seen it work)

    While the police cannot force you to give them your password (would waterboarding be involved?) they have full rights to use your face to unlock the phone while you sleep ( sedated or otherwise)

    And to press your thumb against the sensor while you are asleep ( sedated or otherwise)

    • If you relying on only these methods to protect your confidential or incriminating data, you probably deserve to wind up in jail anyway. There's nothing to stop ANYONE from bonking you over the head and stealing it by those methods.

      • If you relying on only these methods to protect your confidential or incriminating data, you probably deserve to wind up in jail anyway. There's nothing to stop ANYONE from bonking you over the head and stealing it by those methods.

        It's funny you mention that. The moment I get a new phone ( and i hate getting a new phone) I remove the camera(s), microphone(s), and speaker(s) ... (in a pinch speakers can be used as a mic... don't believe me? plug a set of earbuds into your mic jack and talk into them.)

        If I need to make a call I open my Faraday bag, pull out my Iphone 11, plug in a wired headset, power it on, and start dialing the intended number (while trying hard to think about baseball)

        • "in a pinch speakers can be used as a mic... don't believe me? plug a set of earbuds into your mic jack and talk into them"

          No. I'm afraid not. Your phone speakers cannot be used as a microphone because they aren't connected to an A/D circuit, only a D/A circuit. In other words they are connected to electronics that can output audio, but not to electronics that can input and record audio. Your post is the result of a little knowledge being a dangerous thing,

          • "in a pinch speakers can be used as a mic... don't believe me? plug a set of earbuds into your mic jack and talk into them"

            No. I'm afraid not. Your phone speakers cannot be used as a microphone because they aren't connected to an A/D circuit, only a D/A circuit. In other words they are connected to electronics that can output audio, but not to electronics that can input and record audio. Your post is the result of a little knowledge being a dangerous thing,

            You got me.

            Full disclosure : I don't own a Faraday bag either.

            I have used speakers as a mic before, I have removed the speakers and cameras and mic from an Iphone before - for a friend (then I put them back after replacing a broken screen)

            It was a feeble attempt at humor.

            • Did i mention that i also notch the case and solder in three physical switches to toggle wifi, bluetooth, and cellular data independently?

              • I concede that I did not read the last paragraph of your post so Poe's Law got the better of me, however there are certainly people right here on Slashdot these days that have heard that a speaker can be a microphone (which it can if properly wired to the correct circuitry of course) and believe that a phones speaker can be one in the phone as well.

                • I concede that I did not read the last paragraph of your post so Poe's Law got the better of me, however there are certainly people right here on Slashdot these days that have heard that a speaker can be a microphone (which it can if properly wired to the correct circuitry of course) and believe that a phones speaker can be one in the phone as well.

                  I've read enough of your posts over time to value and respect your commentary.

    • Re:Interesting (Score:4, Insightful)

      by jonwil ( 467024 ) on Friday November 22, 2019 @03:04AM (#59441954)

      A good reason NOT to use any kind of biometrics on your devices.

      As for Greykey and Cellebrite and other tech like that, manufacturers should do everything they can to get hold of them and fix whatever bugs or exploits they are using (regardless of whether its being used by Russian cyber criminals, Israeli security companies, the NSA or some random guy on YouTube, an security flaw is still a security flaw and manufacturers should be doing everything they can to identify and fix those flaws for the benefit of all users of their devices)

    • Re:Interesting (Score:4, Interesting)

      by AmiMoJo ( 196126 ) on Friday November 22, 2019 @08:08AM (#59442398) Homepage Journal

      If you get arrested or think you imminently might be you should immediately hold down the power button on your phone. Do a force reset so it needs your long password again before face unlock or fingerprint unlock or unlock pattern will work again.

      Actually I think I read that on the iPhone you tap it 5 times rapidly or something. On most Android phones you hold it down for about 5 seconds.

      • what's the legal ramifications of that though? I remember a case where a woman was charged with destruction of evidence after remotely erasing her phone when the police didn't think to put the phone in a faraday cage https://dailygazette.com/artic... [dailygazette.com]. I think once you are being arrested anything you do to protect your phone is viewed as evidence tampering.

        • Re: (Score:2)

          by AmiMoJo ( 196126 )

          That's why you do it before you get arrested, as soon as you think you might be.

          Phones need a panic mode that starts recording audio/video but requires the password to unlock.

    • Re: (Score:2)

      by Agripa ( 139780 )

      And to press your thumb against the sensor while you are asleep ( sedated or otherwise)

      I have noticed that all of the court orders come down to "unlock this device with your fingerprints" which requires testimony of *which* fingerprint is the correct one. No suspect has yet asked the court which finger they should use.

  • How the court was split (Score:3)

    by virtig01 ( 414328 ) on Thursday November 21, 2019 @09:50PM (#59441350)

    The majority: Todd (D), Saylor (R), Donohue (D), Wecht (D)
    The dissenters: Baer (D), Dougherty (D), Mundy (R)

    Although it's split narrowly, the dissenters concurred with the majority in one part, but not on the second part:

    The dissent agrees that the information the Commonwealth seeks to compel is testimonial in nature. Dissenting Opinion at 2. The dissent, however, contends that, in these circumstances, governmentally forced testimony involving a computer password falls within the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination.

    • Re: (Score:2)

      by cats-paw ( 34890 )

      Still. Very depressing that it was 4:3.

      ; nor shall be compelled in any criminal case to be a witness against himself,

      this seems as clear as can be. The police forcing you to give a password is compelling you.

      wow, reading through the opnion you can see many instances where the majority opinion really took the dissenters to task, e.g.

      Finally, and directly related thereto, the dissent gives scant attention or significance
      to the Supreme Court’s consistent approach that revealing the contents of one

      • That's what the "foregone conclusion" is. They've proven the device is yours, and that you know the password. Therefore you are not incriminating yourself by revealing the password (in and of itself.) And they can't use that fact against you.

        The Fifth Amendment privilege prohibits the government from coercing a confession or forcing a suspect to lead police to incriminating evidence.

        Sounds good to me.

        • But suppose that your password is, in and of itself, an admission of some wrongdoing? My password is now "Ikilledadrifterin1987andtheyneverfoundthebody_1"
        • That's not what the foregone conclusion doctrine is. The doctrine was established when an officer actually saw illegal content, then the person closed the laptop, thereby dismounting the encrypted drive. The Court ruled since the officers were absolutely sure of exactly what was there, a foregone conclusion exception should apply. It's not just about whether they can prove its your device or you (at some point) knew the passcode. Unless they *know* there's something there, not just suspect, the contents are

    • Fifth Amendment privilege...

      How fucked up is that?

    • Re: (Score:2)

      by sjames ( 1099 )

      They must have a different version of the Bill of Rights than the one I've seen. The latter's 6th amendment doesn't offer any exceptions.

      That or we're hip deep in sophistry.

      • They must have a different version of the Bill of Rights than the one I've seen. The latter's 6th amendment doesn't offer any exceptions.

        That or we're hip deep in sophistry.

        Unfortunately, from what I can tell, US legal history is mostly a long sequence of lies (found in the text of precedents) told to 'justify' government and/or the legal profession ignoring the Bill of Rights (otherwise known as treating the Bill of Rights like toilet paper).

        The occasional exception occurs in cases like this one - but even here you can clearly see how badly entrenched the corruption is.

        This should have been an unanimous decision: all the judges should have been in agreement.

        Better yet, the is

  • "Requiring the Commonwealth to do the heavy lifting, indeed, to shoulder the entire load, in building and bringing a criminal case without a defendant's assistance may be inconvenient and even difficult", yeah, I'm sure it is, but the very notion that a defendant should help in their prosecution is absurd. Who would do that? What rational system would expect it? Fortunately, not ours.

  • This ruling at the PA state level has no effect, because PA is in the Third federal circuit, and this circuit has already ruled that a defendant/detainee CAN be forced to turn over their passwords.

    https://www.techdirt.com/artic... [techdirt.com]

    Federal precedent trumps state rulings.

  • Question (Score:3)

    by Jhon ( 241832 ) on Friday November 22, 2019 @10:26AM (#59442878) Homepage Journal

    Finger prints can often be spoofed on many phones if you have a copy of the original finger print.

    Wouldn't it be possible to gain access to a phone by using what the police may already have in their records?

  • It is obvious that no one can "force" anyone to do something they are not inclined to do. They can use violence and threats of violence to perhaps instill sufficient inclination, but they cannot "force" anyone to do anything.

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