Should Police Be Allowed to Demand Your Cellphone's Passcode? (cbs12.com) 290
Slashdot reader FlatEric521 tipped us off to an interesting story (from the News Service of Florida):
When police responded in 2018 to a call about a shattered window at a home in Orange County, they found a black Samsung smartphone near the broken window. A woman in the home identified the phone as belonging to an ex-boyfriend, Johnathan David Garcia, who was later charged with crimes including aggravated stalking.
But more than three years after the shattered window, the Florida Supreme Court is poised to hear arguments in the case and consider a decidedly 21st Century question: Should authorities be able to force Garcia to give them his passcode to the phone?
Attorney General Ashley Moody's office appealed to the Supreme Court last year after the 5th District Court of Appeal ruled that requiring Garcia to turn over the passcode would violate his constitutional right against being forced to provide self-incriminating information... The case has drawn briefs from civil-liberties and defense-attorney groups, who contend that Garcia's rights under the U.S. Constitution's 5th Amendment would be threatened if he is required to provide the passcode.
But Moody's office in a March brief warned of trouble for law enforcement if the Supreme Court sides with Garcia in an era when seemingly everybody has a cell phone. Police obtained a warrant to search Garcia's phone but could not do so without a passcode. "Modern encryption has shifted the balance between criminals and law enforcement in favor of crime by allowing criminals to hide evidence in areas the state physically cannot access," the brief said.
But more than three years after the shattered window, the Florida Supreme Court is poised to hear arguments in the case and consider a decidedly 21st Century question: Should authorities be able to force Garcia to give them his passcode to the phone?
Attorney General Ashley Moody's office appealed to the Supreme Court last year after the 5th District Court of Appeal ruled that requiring Garcia to turn over the passcode would violate his constitutional right against being forced to provide self-incriminating information... The case has drawn briefs from civil-liberties and defense-attorney groups, who contend that Garcia's rights under the U.S. Constitution's 5th Amendment would be threatened if he is required to provide the passcode.
But Moody's office in a March brief warned of trouble for law enforcement if the Supreme Court sides with Garcia in an era when seemingly everybody has a cell phone. Police obtained a warrant to search Garcia's phone but could not do so without a passcode. "Modern encryption has shifted the balance between criminals and law enforcement in favor of crime by allowing criminals to hide evidence in areas the state physically cannot access," the brief said.
They can demand... (Score:4, Insightful)
but they aren't going to get it
Re:They can demand... (Score:5, Insightful)
If they have a warrant and you don't comply then it's contempt of court.
This particular type of contempt can put you in prison with no time limit so I don't see why the police are having a hard time getting anybody to comply.
https://www.law.cornell.edu/us... [cornell.edu]
Re: They can demand... (Score:4, Insightful)
Comment removed (Score:4, Insightful)
Re: They can demand... (Score:4, Insightful)
In this case the defendent most definitely has done something wrong to justify a search of his phone.
Innocent till proven guilty. I've sat at juries where the accused was likely guilty, but we never allowed ourselves to think like that. Evidence or else, it's the only way to proceed in a civilized society.
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In this case the defendent most definitely has done something wrong to justify a search of his phone.
Innocent till proven guilty. I've sat at juries where the accused was likely guilty, but we never allowed ourselves to think like that. Evidence or else, it's the only way to proceed in a civilized society.
Heck, I must add that in one case, we (everyone working as a jury) knew deep within our guts that the accused was guilty (in this case, burglary). But we ruled "not guilty" because the evidence wasn't sufficient to prove beyond reasonable doubt. Here it was the fault of law enforcement in handling evidence.
In a criminal case, to be guilty is to demonstrate guilt in such a way that no competing theory of innocence is possible in the eyes of reasonable citizens judging the facts.
We have sent people to the
Re: They can demand... (Score:5, Insightful)
Re: They can demand... (Score:5, Funny)
the constitution is more of a guideline and the bill of rights aren't absolute.
C'mon man, think of the children.
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the constitution is more of a guideline and the bill of rights aren't absolute.
C'mon man, think of the children.
The Constitution IS NOT a "guideline" and the Bill Of Rights ARE absolute..
And I AM "thinking about the children".. I DO NOT want them to live in a remake of the
old Soviet Union which is PRECISELY where this country is going, unless we are able
to stop it.
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The wording of the US Constitution is still amazingly clear. Meanwhile on your continent, Brussels can issue a new thousand-page regulatory diktat to enforce whatever it wants. Whatever arguments you may raise against it are taken as "suggestions" if they deign to consider them at all.
Re: They can demand... (Score:5, Insightful)
It is notable that police can obtain a warrant for a personal vault, but they cannot obtain a warrant for the combination. That is, given a warrant for the vault, they may ASK for the combination but if the owner declines to tell them, they may either give up or crack it open by whatever means they have available.
It could be argued that a phone should be MORE protected than that, but there is no reasonable argument that it should be less protected.
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"I don't recall". Now prove otherwise.
It worked for Ronald Reagan (to be fair given what we know now, he very well might not have recalled).
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What he meant to say was:
"Modern encryption has shifted the balance between criminals and the user in favor of the user by allowing the user to hide his informations in areas the criminals physically cannot access,"
FTFY
Re:They can demand... (Score:5, Insightful)
" imagine a situation where an atomic bomb could only be disabled by accessing the phone of a person not cooperating, and there was not much time left before it detonates. "
Then you torture it out of them, then you go on trial for assault/battery of them, and try to convince the jury you had to.
Do what you gotta do, but face the consequences.
Is it worth 5-10 years in prison to do it? then that's the price.
Re:They can demand... (Score:5, Informative)
The GP poster that you replied to clearly wasn't buying the ticking time bomb argument that the poster before them put forward. After all, if there really is a ticking time bomb, it's ridiculous to think that the prospect of being held in contempt of court would cause anyone to give up the code. The GP's counter-argument usually works best in the scenario where someone has suggested that torture should be legal because someone might know the deactivation code/location of/trick to defusing a bomb that will kill a million people. The response is that, if torture would actually work in that situation, then no law allowing it is required. Just go ahead and torture for the information, accepting that you are committing a crime and will have to face trial and prison after. If a million lives are at stake, then the person arguing that they should be allowed to torture should be willing to go to prison to save them. The argument still works for the ticking time bomb scenario where you just need access to someone's phone. If there's a clear and present danger that severe the law will go out the window anyway in what people are willing to do to prevent it, and no law requiring someone to hand over the password will have any bearing. It's really just a way of saying that the ticking time bomb scenario is ridiculous.
Re: They can demand... (Score:4, Insightful)
Obviously not (Score:3)
Get a warrant, then we can talk.
Re:Obviously not (Score:5, Insightful)
Re:Obviously not (Score:5, Interesting)
This is like finding a document written in a foreign language you made up... they're asking you to use your mind to apply a transformation to turn it into English. They couldn't do that with a piece of paper, that the language is mathematical and your phone translates it automatically shouldn't change the equation.
Unfortunately, courts do have a long tradition of accepting "But it makes our jobs harder" from police as a valid reason to shit on the constitution, and I wouldn't expect different from SCFL... but they might have a shot with SCOTUS (the breakdown would probably wind up being interesting too; Gorsuch might rule in favor of the 5th, Breyer probably won't).
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The police can't demand the combination to a safe you own. If it's opened by a key, and it's acknowledged you have the key, you can be compelled to turn that over.
They don't need the key if they have a warrant. With a warrant they can use a big angle grinder.
The fourth amendment only covers "unreasonable" searches.With probable cause and a court warrant they can search
using any means necessary.
Re:Obviously not (Score:5, Informative)
Right. But a written document in code... you can't be forced to decrypt it under 5th... but note that if you were cooperating with the police/FBI and suddenly stop, you can be deeemed to have waived your 5th rights in the investigation.
So the statement...
And that's another blatant violation of the 5th (Score:3)
And IMHO that's another blatant violation of the 5th and should be reversed.
Doing this lets the police sucker someone into thinking they're helping go after some other perpetrator and that all that miranda stuff was just because they had to do that pro-forma. Then when they finally realize that THEY're a suspect (or something they mentioned makes the cops d
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Fifth amendment. Not fourth.
You can search my house (with cause and a warrant), but I don't have to tell you where I'm hiding my incriminating evidence.
Re: Obviously not (Score:2)
You're bending the truth they did search, and it was in a garbally gook format that they couldn't understand. Search completed successfully.
Understanding != searching.
They are mad they didn't understand.
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Their inability is their problem. They have their warrant to search. They searched and couldn't make any sense of it. Too damn bad.
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It would be a more difficult case if the suspect acknowledges it is his phone. In this case, from reading TFA, it appears the police are trying to tie him to the phone.
Imagine it this way - the police ask you if you killed someone. You take the fifth. Then the police demand you tell them the location of the murder weapon, since they have a warrant for it.
That's clearly an end-run around the fifth. Knowing where the murder weapon c
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Can't the cops just look at the phone's IMEI and tie it to him through phone billing records?
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Right to Remain Silent (Score:2)
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They already have a warrant. The question is whether you can be compelled to reveal your passcode with a warrant.
Cop Mode, like the old Boss Mode (Score:5, Interesting)
Remember the old video games that had a "boss key". You press this special key and the game halts and puts up a fake screen that looks like an excel spreadsheet. Similar idea, different implementation, for a "cop passcode".
The "cop passcode" could just lead to fake digital content. A better implementation would have opt-in content. Where any digital activity could be marked as cop-safe and be visible with the "cop passcode".
Off course "cop passcode" might be poor branding and artificially limit the market. It obviously would be equally valuable with wives, parents, etc.
Re: Right to Remain Silent (Score:5, Insightful)
But handing over the passcode is the equivalent to allowing a warrantless search-- They're getting information that the Constitution quite literally says they're not entitled to (self-incrimination).
Side note: Given that 'antifa' is short for 'anti-fascists', why is the right so up in arms about antifa? Does that mean the right is pro-fascism?
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Does that mean the right is pro-fascism?
Yes, if they're in charge. No, if they're not.
Re: Right to Remain Silent (Score:4, Insightful)
Side note: Given that 'antifa' is short for 'anti-fascists', why is the right so up in arms about antifa? Does that mean the right is pro-fascism?
Do you support the Democratic People's Republic of North Korea and their policies, or are you anti-democracy?
Re: Right to Remain Silent (Score:5, Funny)
Because IRL Antifa are commie street thugs.
No, some are anarchist street thugs
No (Score:2)
Demand, yes. Compliance required, no. (Score:5, Informative)
Smartphones have become information vaults. Like vaults, they are permitted to demand the combination but you are not required to divulge any information. The fifth amendment didn't evaporate.
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Just be aware that if you have any other means than a passcode to open the phone then it's a different matter since for example fingerprints can be replicated.
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I'm neither a criminal nor a smartphone owner, so I'm really not worried.
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Actually, it did. In 2014, Massachusetts supreme court rule that you can be compelled to decrypt the contents of your hard drive.
So yeah, this one's going to go to the state. Not that it matters to most Americans-- Customs can seize your electronics and demand you decrypt them without a warrant, as long as you're within 100 miles of the coast.
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Re:Demand, yes. Compliance required, no. (Score:5, Interesting)
The Fifth Amendment argument here is actually weak; it's long established that documents and physical evidence aren't covered under the self-incrimination rule, unless providing access in itself could be evidence of guilt. A long as it's not *you* that's doing the incrimination, as long as it's the *thing itself* that is incriminating, you have to provide it. For example if there is probable cause to suspect you shot someone, the court can compel you to produce your gun for ballistics testing *even though that gun will convict you*. Since it's your gun, your ability to produce it does not in itself incriminate you.
Since we know the phone in question belongs to this guy, his ability to unlock it doesn't in itself prove anything. Therefore a court isn't prevented from ordering him to unlock it by the *Fifth* Amendment.
The operative amendment here is the Fourth -- against unreasonable search and seizure. The amendment is short, and worth reading through carefully, because it makes it clear the government can't root through someone's stuff under the general conviction they might find something useful there, even if that's highly likely to be true. They've got to be looking for something *very specific* and have a reasonable basis to suspect that the thing exists and that the place (or in this case thing) they are searching is a reasonable place to look for it.
Realistically though, we have to keep in mind that where technology is concerned, this is a complicated, quickly evolving area of the law with lots of corner cases and questionable rulings. So what the courts may compel you to do, or punish your for not doing, is a question for a lawyer who practices in this area. But it's clear that the police *shouldn't* be able to go on a fishing expedition through your phone, and if they *can*, then case law is broken.
Re:Demand, yes. Compliance required, no. (Score:5, Insightful)
You're trying to call this something it isn't. They *have* produced the documents. They turned over the phone. The police have the data. They just don't understand it. You're trying to claim they're obligated not only to turn over documents, but to translate them into something police will understand, then turn them over. You're obligated to turn over documents, not go through them line by line and tell authorities what each line means. Doing so requires violating privilege, and it's a strong argument.
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Actually the safe combination thing is more complicated than that. The distinction between a key and a combination is that a combination is the contents of your mind; however if your safe contains evidence you can still be compelled to open the safe and provide that evidence.
That's why I say if you really need to know you need to consult a lawyer. It's very technical.
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Your analogy is very flawed because in this case the police don't have any evidence of "documents" - AKA files on an encrypted phone. All they know is the phone exiss, and they want to go on a fishing expedition inside it.
A more true and accurate analogy is that the police say "we demand that you reveal to us the location of any possibly incriminating files inside your office".
Plead the 5th (Score:5, Insightful)
If they had a warrant to search his house, he wouldn't be compelled to tell them where in the house anything might be stored. In that scenario, his knowledge of something would hinder their ability to find what they may be looking for. The phone is no different. They *think* something is in the phone. They have a warrant to search. The fact that it is very difficult to search is their problem.
If the guy had a 1,000-acre property and they had a warrant to search for a USB drive, I doubt he could be compelled to tell them where it was on the property, or even acknowledge it existed.
Hopefully, some overzealous prosecutor doesn't take the physical analogy too far. If there was a warrant to search a house and he was blocking the door then he could legally be physically moved. Some whack job might want to suggest that means they could get physical with him until he gives up the passcode.
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My understanding of US law is that if you have a safe that requires a key, you can be compelled to hand over the key. On the other hand, if the safe has a combination lock you can't be compelled to give them the combination.
So most of the arguments around phone passwords concern if the password is more like a physical key or if divulging it is covered by the 5th Amendment protection against self incrimination.
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If the guy had a 1,000-acre property and they had a warrant to search for a USB drive, I doubt he could be compelled to tell them where it was on the property, or even acknowledge it existed.
Your argument about searching a large property is a good one. I was thinking about search warrant precedent, but I can see your argument for the 5th as well.
Fundamentally no (Score:5, Interesting)
The phone is substituting for a next phase of evolution, in a real way it's part of us and for that reason we should be expecting and demanding not only that it be sacrosanct but also that it be based on open standards and open sources, both in hardware and software. Eventually it is probably going to evolve into something that is on all the time and providing constant assistance, either worn or even implanted, and you don't want to be having these debates then.
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The phone is substituting for a next phase of evolution, in a real way it's part of us and for that reason we should be expecting and demanding not only that it be sacrosanct but also that it be based on open standards and open sources, both in hardware and software. Eventually it is probably going to evolve into something that is on all the time and providing constant assistance, either worn or even implanted, and you don't want to be having these debates then.
Agreed. Carry the circumstance to its logical extreme...
Imagine a hypothetical future where we are able to perform perfect mind-reading via technology. At what point in the judicial process is it acceptable for that technology to be employed, if ever? If an officer is curious why a "suspect" is in a place? When ten "suspects" are in a lineup for identification? When detectives have no better "suspects"?
Smartphones have become digital extensions of our thoughts and lives. From somewhere to store
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It is only a matter of time before it evolves into a tool of usefulness, or a horrific tool of surveillance. Here in the US, we are lucky so far to have relatively inept people getting power, but all it would take is one strong autocrat and a secret police force to make it where even a twitch on a facial expression can cause someone to be disappeared for good. Or, once implants are commonplace, AI can do the judgement, jury, and execution by itself by dumping a high voltage as soon as it detects a rebelli
How is this even a question? (Score:2)
This is over-reach, unnecessary and duplicitous.
Supremes ruled airport security doesn’t include what is inside a cellphone.
Are they going to pickup every cellphone rule what is inside “evidence-in-common” for public good? Trivial is dialing the ex-boyfriend phone number. Cellphone rings, police have cause to arrest.
Re:How is this even a question? (Score:5, Insightful)
Yes, the brief cited in TFS makes a ludicrous (if predictable) claim:
"Modern encryption has shifted the balance between criminals and law enforcement in favor of crime by allowing criminals to hide evidence in areas the state physically cannot access," the brief said.
Modern technology has decisively shifted the balance in favor of law enforcement, with ubiquitous surveillance, ability to easily and instantly retrieve comprehensive records of actions many years in the past, track your whereabouts nearly everywhere and in near real time, use DNA to identify individuals with near certainty (when proper techniques are applied) from trace residues, etc.
As other posters here note, the police have always had physical locations they could not access due to lack of knowledge. This is not anything new.
But police hate not having all protections from surveillance and search completely stripped away.
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There's a solution (Score:3)
As a law abiding citizen... (Score:2)
As a law abiding citizen I am sure I will never be in this predicament. At least I hope not, because I forgot my passcode. I keep carrying the phone around hoping that I will remember it, but nothing so far.
Re: As a law abiding citizen... (Score:2)
Every lawyer, and many retired police officers, will tell you never to agree to talk to the police, at least without a lawyer present, on the premise that you always can be found to be doing something wrong if you give any investigator enough words to convict you. In fact for most people it doesnâ(TM)t take that much before you will inadvertently admit to doing something criminal. In much the same way, even if you think youâ(TM)re a law-abiding citizen, the chances are nearly 100% that something o
Sounds like a grey area... (Score:2)
If the phone is protected with a fingerprint can the compelled fingerprint be used to unlock the phone?
Is there a difference between compelling a fingerprint and compelling a passcode?
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It gets even weirder. Many modern phones are unlocked with your face. If they can literally just point your phone at you and unlock it...
Replace screen, no Face ID (Score:2)
It gets even weirder. Many modern phones are unlocked with your face. If they can literally just point your phone at you and unlock it...
Apple's iPhone 13 has a feature where if you have a 3rd party replace the screen the faceid functionality is disabled.
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Yes, that's a part of apple's long standing anti-repair agenda. Not sure how it's relevant to compelling someone to look at the phone though.
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Yes, that's a part of apple's long standing anti-repair agenda. Not sure how it's relevant to compelling someone to look at the phone though.
If you are endangered by the possibility of law enforcement using your face to unlock your phone, you can take the preemptive measure of a screen replacement to break that functionality at the hardware level. An actual broken screen not required.
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"You have the right to remain silent." (Score:5, Insightful)
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While in this case, I don't think the law should compel the suspect to give the passcode to his alleged phone, there are some circumstances in which a person can be compelled to provide evidence against themselves.
I believe (and IANAL) that one example is a corporate officer can be forced, as an officer of a corporation, to testify about that corporation's dealings despite such information incriminating himself.
Such
Yes. they should (Score:2)
As much as I should be allowed to tell them that they don't get it.
Guilty till you prove innocence. (Score:3)
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How do you prove you forgot your password?
Simple. I try it [incorrectly] enough times that the phone permanently locks itself.
I Hope They Lose (Score:5, Interesting)
For every case like this, where there's a legitimate reason why the police might want the passcode, there will be dozens, if not hundreds, or even thousands, of cases where you have some traffic cop pulling people over and then deciding they want to conduct a search of the person's cell phone without any kind of warrant or even probable cause.
So until we find a way to strike an appropriate balance between the two, it's better a few guilty people go free than we give law enforcement a carte blanch ticket to just rifle through anyone's phone. Besides, in the example given in the blurb, the phone being located on the woman's property already places the ex-boyfriend at the scene, and they probably already have records from the cellular carrier that shows what towers that phone pinged around the time of the crime, which should draw a pretty straight line between the ex-boyfriend's home and the victim's. They should already have everything they need for a successful conviction.
Spirit of the 4th amendment (Score:2)
No one should be compelled to aid in their own prosecution.
They could ask my lawyer... (Score:3)
because the only thing I am saying to the police is: "I want a lawyer."
Not new (Score:2)
The criminals have ALWAYS been able to hide info in places the cops can not get.
The real truth is this:
1) Torture has 2 things against it: a) it is evil and b) it is generally unreliable. Unless you can verify the information quickly, you have to be an idiot to use it.
2) The invention of passwords means that suddenly there is a lot of quickly verifiable information. So suddenly the government decides it does not care about being evil, it wants to torture people. Yeah, it goes with light torture, i.e. impr
Not sure it tilts anything (Score:2)
If police were doing adequate on-the-ground forensics, would they need the phone?
Depending on time, you can fingerprint the scents in the air and match them to a suspect. Since it's skin bacteria that make the fingerprint, matching to the skin bacteria on the phone would be possible, verifying that the air signature matches who held the phone and both match the suspect.
What if you have forgotten? (Score:2)
If the result is yes, what if you have forgotten?
Consider: You get tossed in jail, then get interviewed for days on end and can barely get some sleep. You have a 10-digit PIN that you do not even remember anymore since it's part of the muscle memory. You have not used your phone for days since it's been in the evidence locker. What if you say "I really don't remember.", either truthfully or not, what happens then?
Never... (Score:2)
no (Score:2)
that's all
Modern human rights has shifted the balance .. (Score:2)
Modern human rights has shifted the balance between criminals and law enforcement in favor of crime by allowing criminals to hide evidence in areas the state physically and mentally cannot access.
So basically in a greater sense Moody's is suggesting to ditch the human rights - if you're ok with that, go ahead.
Were they somehow involved in making the argument why Gitmo was lawful? Or that "water boarding" is not torture? I wouldn't be supprised.
Perhaps they can also amend their expertise and suggest using w
No way (Score:2)
Besides, it's not like the authorities can't get at the info if they really want it. It's been several times that police and even the FBI have tried to force the issue to make people give them passwords, or companies to provide backdoors, etc and claimed that if they didn't, there was no way the authorities could ever get at the suspected evidence on those devices. After weeks, months, or ev
The issue is Fishing (Score:2)
The right against self-incrimination isn't just about direct evidence for this alleged crime... it is also for other unspecified crimes. The defendent, and most rational people, do not want authorities going through their entire phone, retrieving bank passwords, late night sexts to lovers, photos taken and not yet deleted... all of which, by the way, become public record if entered in court, even if not used.
We don't have good controls over our data once the "authorities" get their hands on it. That is th
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Are they allowed to go through your locked safe within your house?
With a warrant? Yes.
They'll also call in a guy with a big angle grinder as necessary.
Re: Are they allowed to go through your wallet? (Score:3)
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Keys for safes are common (Score:2)
Which "safe" has a physical key anymore ?
Actually keys are more common now than in previous decades. Modern safes with electronic locks often have a mechanical key as a backup. Older designs with only a mechanical combination lock tended not to have keys.
Re:Are they allowed to go through your wallet? (Score:5, Insightful)
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They are allowed to go through my wallet. But if they find a note reading "jhdyh jkdhss fif;k 23ld", I am not required to tell them what (if anything) that means.
Re: "Physical Access" as a requirement (Score:2)
Printed on thin sugar paper cellophane in a safe with glass plates on all sides that hold acidic water so if pierced with a drill or blown apart instantly soaks the paper ruining the key. With a low power pi-zero inside with a gpio ignitor to some thermite using a loRa heartbeart connected to a few kill switches and gforce sensors plus radiation/sensors to detect inspections/relocation. Rules pre-programmed that you only ever open the safe at a certain time window or it also blows.
Now imagine multiple of th
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Easily done:
https://xkcd.com/538/ [xkcd.com]
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One sentence on one page on a book in my library of 200+ books.
"Once upon a time..."
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Only if it's a sentence that you haven't memorized yourself and just have the book as backup for the key.
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Problem is, it's not the police but the court of law that is asking for it. It's important to remember that while it is the executive branch that asked for access, it's the judiciary that granted it. This is the power that is vested in the court in systems with separation of powers into executive, legislative and judiciary branches. Executive cannot ask you for this access. But court can.
This changes the question quite dramatically. For example, if court tells you to grant its enforcer, i.e. police access t
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So the case will set a precedent.
No beatings will occur (Score:5, Insightful)
Just toss a liberal celebrity into the ring with a couple of Marines ...
And the Marines will remain faithful to their constitutional duties and protect the liberal celebrity regardless of their own personal political opinions.
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You do know that the president's party has historically lost the NJ and VA governors seats? It's been that way since the 70's. The fact that the democrats maintained NJ is surprising, not that they lost VA. It doesn't matter which party either, the opposite one has won every time.
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Try reading [washingtonpost.com] It's better than wallowing in ignorance.
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If one is obliged to provide a passcode, one should first have the right to remotely wipe the device.
Then you are at risk for tampering with evidence. A warrant should have a clause about preserving evidence.