Slashdot Mirror
Phone Passwords Protected By 5th Amendment, Says Federal Court
Ars Technica reports that a Federal court in Pennsylvania ruled Wednesday that the Fifth Amendment protects from compelled disclosure the passwords that two insider-trading suspects used on their mobile phones. In this case, the SEC is investigating two former Capital One data analysts who allegedly used insider information associated with their jobs to trade stocks—in this case, a $150,000 investment allegedly turned into $2.8 million. Regulators suspect the mobile devices are holding evidence of insider trading and demanded that the two turn over their passcodes.
However, the court ruled, "Since the passcodes to Defendants' work-issued smartphones are not corporate records, the act of producing their personal passcodes is testimonial in nature and Defendants properly invoke their fifth Amendment privilege."
...of common sense no doubt! I love hearing stories of correct implementations.
Tough for the prosecutors but this is a flash of some sense.
"The likes of Facebook and WhatsApp are free to those whose privacy is of zero value."
by the fifth Amendment.
http://time.com/3558936/fingerprint-password-fifth-amendment/
While I agree with the ruling, I must say that any idiot who uses a work issued phone to conduct illegal business is a special kind of idiot. There is no bus short enough.
"I will trust Google to 'do no evil' until the founders no longer run it." Hello Alphabet.
Good to understand though, that not having to be compelled to produce something that could be used against you, doesn't mean that you are protected from that thing being produced... by others. So if somehow their phones were brute force unlocked or decrypted, that evidence could definitely be used against them.
The Fifth Amendment means that when they torture you into confessing, it's not admissible in court? As an American, I find the concept of throwing out evidence somewhat questionable is well, as in, if someone is guilty, they are guilty, no matter how the evidence was obtained. There should be more direct consequences for unlawfully obtaining evidence, because supressing evidence obtained by violating rights only protects the guilty, as you said. What we really need is a way of punishing law enforcement for violating the rights of INNOCENT people, as it is, they don't even say "I'm sorry". The best we can hope for is to actually get reimbursed for the property they destroy.
I've abandoned my search for truth; now I'm just looking for some useful delusions.
The price of living free is that sometimes paedophiles will go free.
No system is perfect. In order to guarantee every pedo is locked up, 1000 innocents will have to be locked up for every pedo. Sane people realise that's not worth the tradeoff.
SJW n. One who posts facts.
Granted, they don't know exactly what that something one is evidently guilty of might be, but still...
Maybe I'm being just a goofy non-American here, but I honestly don't understand the point. In the general case, would someone explain to me how this constitutional amendment protects genuinely innocent people?
Yes.
And. So what?
Not having the 5th amendment opens the door to what would basically be torture. I think you want the government doing that less than you want the government to win this case.
Anyway, they can go ASK THE FUCKING NSA about what was transferred between the phones. Oh, right, that wasn't a legal search either. Sometimes the parallel construction doesn't work I guess.
Well, first let us look at the text of the 5th amendment:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
As you can see, the 5th amendment is not just about being forced to testify against oneself. It encompasses much of what we in the States consider the 'innocent until proven guilty' principle and the idea of 'due process.' This means that not only do you have no obligation to prove yourself innocent, but also that you are under no obligation to help the courts prove your guilt. The 5th amendment (along with a few others) tries to make it more difficult to wrongly convict the innocent at the cost of occasionally not convicting the guilty.
While not convicting a guilty person is seen as an injustice, I would like to think that most people would see the wrongful conviction of an innocent person as a significantly greater injustice.
Part of the point is that confessing under pressure or torture doesn't mean that the confession is real. If one is being tortured, one may say anything that one believes will end the torture, if the torturer has stated that saying that thing will cause the torture to stop.
Also, don't forget, everyone is innocent until they're convicted in a court of law. Right now, in the eyes of the law, Bill Cosby is completely innocent of any and all accusations that have been made against him. Individuals may choose whether or not to believe that he has or has not done the things that he has been accused of, but he has not been indicted or convicted of anything, and given that it doesn't sound like any evidence exists to substantiate these claims of acts a long time ago, it's very likely that he will not see criminal charges based on the accusations. That doesn't mean that people will trust him like they did before, but in the eyes of the law he is an innocent man.
Do not look into laser with remaining eye.
Typically, police cannot get a warrant to get a 3rd party to do what the police are not allowed to do. Example: A private citizen can hire a PI to spy on someone to gain evidence the police cannot obtain via warrant and turn that evidence over to the police and it is often legal (and even if a crime was committed the police can normally still use the evidence) but, the police cannot hire the PI to do the same thing or coerce the private citizen to do it on their behalf. In this case, if the cops leaned on the employer to coerce the password from the employee, the police are still violating his 5th amendment rights and the evidence will likely be tossed and all data on the phone will be inadmissible even if they find another way to obtain it. Nothing involving law and the courts are 100% certain thus, all the qualifying phrases.
"Be particularly skeptical when presented with evidence confirming what you already believe." -
As an American, I find the concept of throwing out evidence somewhat questionable is well, as in, if someone is guilty, they are guilty, no matter how the evidence was obtained.
This should be "despite being American, ...". Guilt is determined by the courts and it is done so using evidence gathered. If a person of questionable guilt is found guilty in a court of law, then ALL evidence that was used against them to do so is suddenly retroactively converted into having no requirements for its gathering. The person is guilty because of the evidence, and the evidence is admissable because they will be found guilty. This might be a nice system if we could pause the universe and question God as to whether we're correct or not, but we cannot, and if we could, we would probably not need arcane concepts like legal systems in the first place.
How could you possibly hold someone accountable for destroying your property if it's perfectly acceptable for them to destroy your property if you will eventually be convicted? It's just an incentive for everyone involved to convict you regardless of whether you did anything or not.
Both you and the non-American OP are viewing this in a simplistic manner as if a trial exists of questions such as "did you do it?" with a yes or no response. They are not. A skilled prosecutor can make it seem like your 8:59 quick trip to a convenience store reeks of guilt when it was information you happily provided to police. If "evidence" were always as evident as a bloody knife, then the criminals would just clean up after themselves without fail.
It's fucking crazy that a place like /., where people so greatly appreciate the overreaching of the NSA, some people can so quickly do a 180 and justify the same behavior so long as they come up guilty in the end! The 4th and 5th amendments, protecting searches without warrant and protecting you from having to testify against yourself, are intricately and irrevocably linked together. How can you justify not consenting to a search if you can be forced to consent to provide evidence incriminating yourself?
No one should be compelled to assist in their own prosecution.
One of the major use-cases of the 5th amendment is avoiding having to take the stand during a criminal trial. It's not like the prosecutor can call you to the stand and ask you a bunch of innocuous questions like your name, birthdate, job, hometown, etc., which you must answer and then ask "did you commit the murder?" Because it is unconstitutional to force someone to testify against themselves, and because a prosecutor questioning a defendant in front of a jury could imply guilt like this, a defendant's lawyer will often object to them even being called to the stand to testify in front of a jury. In this sense it's axiomatic.
This doesn't prevent evidence from being gathered against you before the trial, and it often doesn't prevent you from giving up information against yourself (ie, it's not like you can refuse a warrant just because they might find something inside your home). The police can still hold it against you during their investigations, like you suggest, so while you can refuse to answer their questions ("you have the right to remain silent"), if you just sit there and completely refuse to talk the police will most likely more aggressively investigate what it is that you're hiding.
They didn't really leech money from society.
If anything, they didn't play fair with other traders, so they missed out on the opportunities.
Unless you're a stock trader, you're not impacted.
You may be an American by birth or by other processes legally, but you have zero concept of what it means to actually be an American, or of why the US was even founded then.
My post says nothing about police behavior other than condemning those who would wish for greater police powers as some kind of wishful thinking about simultaneously convicting more guilty people while reducing executive misbehavior. If you can believe that kind of wishful thinking, backing it up only with your "no true American.." logic, then you should move to Syria, where similar feelings are actually being implemented. Tell me how it turns out!
If you're in a situation where your phone might be confiscated, power it off completely. At least for iOS, TouchID will not unlock the device at power on. The full passcode must be entered. Using more than the 4 (or now 6) digit minimum would be a GoodIdea(TM).
If you're compelled to provide your finger under duress, do the best you can to "smear" the print or else provide fingers that aren't enrolled for TouchID. You only get five attempts. After that, the phone will require your passphrase and even the correct finger print will no longer unlock the device.
If you're in a time-sensitive situation or can touch but can't look at the phone, hold Home & Power down for five seconds or more to force a hard power off.
In any case, powered off is safer than locked as the Secure Enclave processor holds several session keys that are derived from your passcode. Powered on but locked, the keys are technically still "there" and vulnerabilities could conceivably expose them. Powered off, they're gone completely.