Suspects Can Refuse To Provide Phone Passcodes To Police, Court Rules (arstechnica.com) 64
An anonymous reader quotes a report from Ars Technica: Criminal suspects can refuse to provide phone passcodes to police under the US Constitution's Fifth Amendment privilege against self-incrimination, according to a unanimous ruling issued (PDF) today by Utah's state Supreme Court. The questions addressed in the ruling could eventually be taken up by the US Supreme Court, whether through review of this case or a similar one. The case involves Alfonso Valdez, who was arrested for kidnapping and assaulting his ex-girlfriend. Police officers obtained a search warrant for the contents of Valdez's phone but couldn't crack his passcode.
Valdez refused to provide his passcode to a police detective. At his trial, the state "elicited testimony from the detective about Valdez's refusal to provide his passcode when asked," today's ruling said. "And during closing arguments, the State argued in rebuttal that Valdez's refusal and the resulting lack of evidence from his cell phone undermined the veracity of one of his defenses. The jury convicted Valdez." A court of appeals reversed the conviction, agreeing "with Valdez that he had a right under the Fifth Amendment to the United States Constitution to refuse to provide his passcode, and that the State violated that right when it used his refusal against him at trial." The Utah Supreme Court affirmed the court of appeals ruling.
The Valdez case does not involve an order to compel a suspect to unlock a device. Instead, "law enforcement asked Valdez to verbally provide his passcode," Utah justices wrote. "While these circumstances involve modern technology in a scenario that the Supreme Court has not yet addressed, we conclude that these facts present a more straightforward question that is answered by settled Fifth Amendment principles." Ruling against the state, the Utah Supreme Court said it "agree[s] with the court of appeals that verbally providing a cell phone passcode is a testimonial communication under the Fifth Amendment."
Valdez refused to provide his passcode to a police detective. At his trial, the state "elicited testimony from the detective about Valdez's refusal to provide his passcode when asked," today's ruling said. "And during closing arguments, the State argued in rebuttal that Valdez's refusal and the resulting lack of evidence from his cell phone undermined the veracity of one of his defenses. The jury convicted Valdez." A court of appeals reversed the conviction, agreeing "with Valdez that he had a right under the Fifth Amendment to the United States Constitution to refuse to provide his passcode, and that the State violated that right when it used his refusal against him at trial." The Utah Supreme Court affirmed the court of appeals ruling.
The Valdez case does not involve an order to compel a suspect to unlock a device. Instead, "law enforcement asked Valdez to verbally provide his passcode," Utah justices wrote. "While these circumstances involve modern technology in a scenario that the Supreme Court has not yet addressed, we conclude that these facts present a more straightforward question that is answered by settled Fifth Amendment principles." Ruling against the state, the Utah Supreme Court said it "agree[s] with the court of appeals that verbally providing a cell phone passcode is a testimonial communication under the Fifth Amendment."
Alarming (Score:3, Interesting)
I think the takeaway here is more alarming. It sounds like the sole "evidence" here was his refusal to allow access to the phone.
Re:Alarming (Score:5, Insightful)
It sounds like the sole "evidence" here was his refusal to allow access to the phone.
There was a teeny bit more evidence than that. For instance, the testimony of his ex-girlfriend describing how she was abducted at gunpoint and her medical records from being hospitalized after he beat the crap out of her. Also, threatening texts from him on her phone.
Re: (Score:2, Informative)
I read the ruling. I thought they were unable to recover her phone for some reason. Her own testimonial is not any more valid than his current wife's conflicting testimony so it doesn't carry a lot of weight on its own. The fact that she was in a hospital only proves she had an injury at around the right time - it doesn't necessarily mean he was the only violent person she was around.
Re: Alarming (Score:2)
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Additionally, you have GPS data available that can show they were in close proximity with each other and for how long. It can show they traveled together and when. Call records can show when they talked to each other around the time of the assault. Is there DNA evidence at the location where he may have beat her up? On her face or under her fingernails?
I mean, really. How did the cops ever collect enough evidence to convict anyone of assault before cell
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Easily. They just beat a confession out of someone. Case closed.
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Apparently the case was weak enough for the guilty verdict to hang on his refusal to tell police the password. Otherwise the court would have vbent over backwards to describe the inclusion of that as a harmless error that didn't affect the outcome.
Re:Alarming (Score:5, Insightful)
Re:Alarming (Score:4, Interesting)
Where I live, to be on a jury you have to be registered to vote or have a drivers license. Sorry to break it to you, other voters are your peers, other drivers are your peers. You could skip jury duty by not voting or driving, in which case maybe you have a different set of peers.
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I've seen a monkey driving a kiddie car. That doesn't make him my peer (or yours).
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Monkeys cannot be licensed drivers nor can monkeys register to vote.
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Sure, try your argument at jury duty and see what happens.
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Re: Alarming (Score:4, Insightful)
Re: Alarming (Score:4, Insightful)
There is a fairly large body of legal thought that says the jury's ability to nullify an unjust law is a critical final protection from tyranny.
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Politicians have worked long and hard to ensure that an informed electorate is now pretty much a creature of fantasy. The last thing those corporate-owned parasites want is an informed electorate.
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The high end criminals bribing them won't want to have to give up their passcodes either
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Well we know how this will go.
Yes, undoubtedly this will be upheld if the court even bothers to grant cert.
Or, wait, did you mean to imply something else?
Re: (Score:1, Funny)
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Nihilist fallacies in defense of liars are not doing it for you.
Re: (Score:2)
I earn it every day. I am way smarter than you. It isn't hard. You just spew Narrative nonsense thoughtlessly.
You don't seem to know what that word nihilist means, btw.
Re: (Score:3)
Intelligence isn't an identity, loser. It's a set of actions.
You can start by seeking help for that obvious me
Re:US Supreme Court (Score:5, Interesting)
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I don't trust that either court is consistent with the court of 1857.
And?
Re: US Supreme Court (Score:3)
But Your Honour, I gave them the password (Score:4, Funny)
Is it my fault they didn't understand it actually is, "F*ckYouPig"?
Unenforceable (Score:2)
Being arrested put a lot of stress and pressure on someone. Under those circumstances, anyway, I would probably "forget" my password anyways.
Whatâ(TM)s next⦠(Score:2)
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From the fine summary, there was no warrant. The police simply asked, and the accused said no, as he fully has the right to do. There was no attempt by the state to compel production of the passcode.
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There was a warrant - for the contents of the phone. They didn't have a warrant for the passcode to decrypt it - though that might be equally protected under the 5th it would be a very different kind of case.
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I do not know the answer to this question, but what if the prosecution were to demand you provide a written document they presume is incriminating for you, and you decline? And after searches with warrants, they fail to find it, and are told with credibility that you do know where it is...? Can they compel you to tell them where it is? Can you refuse to answer? I suspect they can force open a safe, if they can, if the document is within, without your permission. If that safe is rigged to destroy the content
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If that safe is rigged to destroy the contents if forced open
Then you'll additionally be charged with obstruction of justice and tampering with evidence, along with anything else they can think of.
Re: Whatâ(TM)s next⦠(Score:2)
Well they do that anyways... I wonder if those charges would stick.
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How is that any different than configuring your phone to erase itself if the wrong password is entered 3 times? As long as you take the measure routinely and not in response to a subpoena or whatever it seems like it isn't an attempt to destroy evidence but to prevent unauthorized access.
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Can they compel you to tell them where it is? Can you refuse to answer?
1) No.
2) Yes.
if i get arrested for ANYTHING (Score:4, Insightful)
Re:if i get arrested for ANYTHING (Score:5, Insightful)
Not only do you not have to say anything, it is super stupid to do so. Until you get a lawyer, shut the fuck up.
The _only_ thing you say is, "lawyer".
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Actually, the phrases you should use are:
"I do not consent" (never answer yes or no)
"I invoke the fifth" (you must always say this to prevent misinterpretation of your silence)
"I want a lawyer". (Make sure you use those exact 4 words. The Supreme court has found variations of it may not count - look up "lawyer dog" for examples - the guy kept saying "I want a
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Remaining silent does not work anymore. You must tell the police you wish to exercise that right. https://en.wikipedia.org/wiki/... [wikipedia.org]
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Obligatory
"Don't Talk to the Police"- https://www.youtube.com/watch?... [youtube.com]
SCOTUS actually needs to take one of these cases (Score:3)
The SCOTUS really needs to hear some of these 4th and 5th amendment technology cases.
My belief is that we have an amendment process if the Constitution needs to be changed to deal with the current state of the world we should the process. Arguments that its to hard and nothing can get done on that score in todays process actually justify it, the point was for it to be a big lift, the point was for near unanimous national consent being required to change the thing that fundamentally defines our nation, if you can't get that than you cant - and that is a good thing it is how society actually keeps its promises.
To that end the courts should be as 'originality as possible' they should read it as it is most likely to have been understood by the people who authored it at the time, so some of it needs to be read the context of 1778, and other parts when the amendment was passed etc. That does mean things like 'arms' should be understood to be the same things professional armies had access to for example because those were the same things used at home at the time. If the public really does not believe that you should be able to have 50 cal belt fed machine gun at home, it should be easy to pass an amendment that mirrors the Fire Arms Control Act. All it should really take is for gun control advocates to resist the urge to go further and they could get it done probably, rather than watch as a court honestly reading 2A continues to dismantle the laws they do have in place.
On this subject of phones and what not and digital privacy. The framers never imagine uncrackable safes or strong boxes. The assumption would have been once the government obtained a warrant they could at some point get at those goods. I don't think you can use that as justification though, because I could similarly argue they never imagined satellite photos, or metal detectors. If I had box buried deep in the woods of northern NY in 1788, your chances of finding it without my telling you or leading you to it would have been pretty low, maybe lower than getting into my cryptography secured storage on my phone today via some implementation flaw.
I think the plain read is the defendant is allowed not to disclose a key just they they would have been allowed not disclose crypto-location, it would be giving testimony against themselves. You might counter it is to easy cipher all the things today, a lot easy than hiding all your secrets in the wilderness, that the asymmetry of that is impractical from a standpoint of law enforcement and governance. I might even be inclined to agree with you and might support some changes..
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Yes, the constitution is amendable. But when the founding fathers put the numbers in place, they only had to get 3/4 of 13 states to agree on it, about 9 states. Now it's about 37 states. Not to mention the minimum number of votes within a state's legislature. Instead of getting a couple hundred people to agree on something, it's a few thousand. Good luck with that.
The last 3 amendments have mostly been constitutional clarifications and procedural matters.
23. Presidential succession
24. Age 18 to vote (
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The SCOTUS really needs to hear some of these 4th and 5th amendment technology cases. [snip]
To that end the courts should be as 'originality as possible' they should read it as it is most likely to have been understood by the people who authored it at the time, so some of it needs to be read the context of 1778, and other parts when the amendment was passed etc. [snip]
On this subject of phones and what not and digital privacy. The framers never imagine uncrackable safes or strong boxes. The assumption would have been once the government obtained a warrant they could at some point get at those goods.
I agree with you wholeheartedly that we need some sort of court ruling about a modern interpretation of the 4th and 5th amendments in a 21st century world, for the very reasons you specify.
I would submit, however, that while the examples you gave are good ones that the authors couldn't have meaningfully imagined, there are examples on the other end of the spectrum as well. It's basically impossible to be 'reasonably secure in your papers and effects' if Google/Microsoft/Apple/Amazon/Meta is the one in posse
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Could the authors envision a message that is 4096-bit RSA encrypted, where it was both trivial to implement and there was no possible means of decrypting it without the defendant?
Of course they could. They didn't have anything as hard to crack as RSA at the time, but they also didn't have good mathematical tools for breaking ciphers. They would have been aware of ciphers going back to the Roman empire at least. Just because an old laptop can now trivially crack Enigma doesn't mean it wasn't once thought good enough to protect military secrets in wartime.
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The framers never imagine uncrackable safes or strong boxes. The assumption would have been once the government obtained a warrant they could at some point get at those goods.
This just simply isn't true. They're not uncrackable safes... they government can absolutely get their contents. But the contents are encoded. The Founders were absolutely not strangers to secret code ciphers for protecting the contents of documents, indeed many of them used such techniques [theatlantic.com]. There was zero expectation the government would always be able to decrypt the documents they seized, since while almost all of those techniques are crackable with computers now, they weren't back then.
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Do you really want a bunch of right wing fascists taking up a case about protecting defendant rights?
Is that a trick question? Because the default answer is "hell no".
Seems like the right ruling. (Score:3)
It's complicated. You have to decide what, legally, a phone actually is. Is it like a room in your house where you keep your diary? Might be covered in a warrant. Is it another building? Might need a more expansive warrant. But is it an extension of your mind, so that the right to not self-incriminate applies? Well, if your diary in a room in your house can be seized under warrant and used as evidence, perhaps your phone should too.
But as long as it remains unclear - as the decision was here - you have to drop back to the fifth. They can claim the phone but you don't have to cough up the password to it. But if they crack it by other means it's probably available to the authorities.
The world is starting to get crowded with these as-yet specifically covered situations. But... the landscape is already cluttered with too many laws.
It's complicated. I'm glad it's not my job to figure it out.
Re: (Score:2, Insightful)
Your phone is like a diary that's written in a secret language that needs an code to decipher. They can take it but if they can't read the information it contains, that's tough luck for them. The 5th should protect you from being compelled to decipher that.
Pretty much the same as if I made up my own language and used that to write in my diary. You can get a warrant for the physical object but you can't force me to translate it for you.
Of course, I'm not a lawyer, so that's a layman's view of things.
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Well before the U.S. was even founded, keeping your diary in code was an option. Perhaps even in a code never written down.
Re:Seems like the right ruling. (Score:4, Insightful)
It's complicated. You have to decide what, legally, a phone actually is. Is it like a room in your house where you keep your diary? Might be covered in a warrant. Is it another building? Might need a more expansive warrant. But is it an extension of your mind, so that the right to not self-incriminate applies? Well, if your diary in a room in your house can be seized under warrant and used as evidence, perhaps your phone should too.
A phone is an object. It can be seized with a warrant.
A phone is like a safe. Its contents are personal papers and effects. A warrant gives the authorization to attempt to open it and examine the contents. What can be extracted depends on the authorities capabilities. A codebreaker is like a safecracker -using tools to extract the contents.
An individual is under no obligation to provide the investigators with any assistance, but is obligated not to interfere in the execution of a warrant.
Already dealt with, no right to understand (Score:5, Insightful)
Already dealt with, there is no right to understand what you are looking at during a search.
Existing case law totally applies.
1. Warrant means they get to look at the phone or diary.
2. You having arranged the information in such a way that you can interpret it but they cannot, is a problem for them.
3. Existing 5th amendment rights mean that you do not have to assist in "providing understanding" to what they cannot gather from simply looking.
Clean cut. You say phones are able to encrypt. Well back in the day people used mirrors and code words in their diaries and it was the exact same thing. Warrant means they get to look. And looking because of your mindful obfuscation means their search was not "useful".
All our current protections basically ensure this. Nothing new is needed.
I could arrange quarters in stacks representing binary 0's and 1's on a table in my house. A search of that house means they get to see my stacks of quarters. 5th Amendment means I don't have to explain the system I used to encode these random stacks of quarters even if I personally can use something in my mind to decode it.
Tough cookies. Quit trying to gain the right to "understand". You never had it and phones don't change a damn thing.
a little misleading (Score:2)
The report appears to suggest that refusing to provide a password has been ruled not a crime. That has nothing to do with this. Rather, the court ruled that the guy's refusal to provide the password cannot be used as evidence to convict him of something else.