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Florida Court Says Suspected Voyeur Must Reveal His iPhone Passcode To Police (bbc.com)
A Florida appeals court has reversed a decision by a previous judge and ruled that a suspected voyeur can be made to reveal his iPhone passcode to police. "The defendant was arrested after a woman out shopping saw a man crouch down and aim what she believed was a smartphone under her skirt," reports BBC: Store CCTV captured footage of a man crouched down, holding an illuminated device and moving it towards the victim's skirt, according to court documents published by news site Courthouse News. Aaron Stahl was identified by law enforcement officers who reviewed the footage, according to court documents. After his arrest, Mr Stahl initially agreed to allow officers to search his iPhone 5, which he told them was at his home. However, once it had been retrieved by police - but before he had revealed his passcode - he withdrew consent to the search. The trial court had decided that Mr Stahl could be protected by the Fifth Amendment, which is designed to prevent self-incrimination. However, Judge Anthony Black's formal opinion to the court quashed the decision. Judge Black referred to a famous Supreme Court case, Doe v US 1988, in which Justice John Paul Stevens wrote that a defendant could be made to surrender a key to a strongbox containing incriminating documents but they could not "be compelled to reveal the combination to his wall safe." "We question whether identifying the key which will open the strongbox - such that the key is surrendered - is, in fact, distinct from telling an officer the combination," wrote Judge Black. "More importantly, we question the continuing viability of any distinction as technology advances."
Fifth amendment violation. This judge isn't qualified to practice law in the United States.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
Did TFS just say that the judge who ordered the defendant give up the passcode cite a case where a court found that a defendant could not be compelled to give up the combo to a safe as precedent?
whois gawk date unzip strip find touch finger mount join nice man top fsck grep eject more yes exit umount sleep dump
This is what you get for deciding that the Constitution is a "living document", and that a judge's opinion can be substituted for the plain wording of the 5th Amendment.
This is ridiculous that this moron lies and claims that nonright.
If you have anything on a "smart" anything device you would not publish on an open blog or play on the evening news upon request.... Have at least 2 and preferably 3 passwords that offer access ONLY to isolated sections of said anything....
BS the technology makes the wording irrelevant.
Stevens point was that if there's a key the police can find, they're entitled to use it. That includes finding the passcode on a sticky note or getting Apple to unlock the phone.
They are NOT allowed to compel a suspect to regurgitate words locked in his head... EVER... TECHNOLOGICAL REASONS BE DAMNED.
The Florida Supreme Court justices should be disbarred for such flimsy rationale.
I am not sure, but when a similar case was discussed here before. I believe you could be compelled to decrypt a computer, if the police could show that knew you were hiding evidence of a crime. Well, at least that was what was said about opening a safe. You could be compelled, if the police could show the court proof that you were concealing evidence.
So, they could not go fishing for evidence. They had to know the evidence exists and to some extent its content. That maybe true in this case....
http://seinfeld.wikia.com/wiki...
âoeWe question whether identifying the key which will open the strongbox â" such that the key is surrendered â" is, in fact, distinct from telling an officer the combination,â Black said. âoeMore importantly, we question the continuing viability of any distinction as technology advances.â
Black concluded, âoeUnquestionably, the State established, with reasonable particularity, its knowledge of the existence of the passcode, Stahlâ(TM)s control or possession of the passcode, and the self-authenticating nature of the passcode. This is a case of surrender and not testimony.â
People who behave this way should not be allowed to practice law in any capacity. Those willing to override common sense and plain language to such a degree can find a legal justification that agrees with anything they are predisposed to assume.
This argument has already been a ton of times with passwords. They have certainty the incriminating evidence is on his phone. Disclosing the password provides no new evidence, so it's fine. If he blocks it, they completely have grounds for him interfering with a police investigation because he refuses to provide evidence they know about.
or it didn't happen.
Wouldn't a fifth amendment issue come in to play if he were required to describe the contents of his phone, rather than providing the "key". In other words, if he were compelled to admit he had the stated photos, it would be a 5th amendment issue, but being compelled to open the "lock box" that other evidence shows he's placed the photos in is not?
The latter is distinct from "I see you have a phone there, give us the password so we can see if you have illegal stuff".
It's certainly a tough issue, but the alternative is the LEOs get more ammo to insist on unworkable master passwords.
You want my passcode? Make me tell you.
Since torture is illegal, I guess I don't have to give it to you willingly.
If giving you the passcode incriminates me, I end up in jail either way. So fuck you. Worst I get is obstruction of justice.
Roy Moore got away with it for quite a while, and in an extremely egregious manner.
If it takes that much effort to get rid of a judge who is willing to completely ignore his oath to the constitution, I don't think anything will happen to an appellate judge who is merely trying to get higher courts to reconsider a previous decision. Like any other profession, judges protect their own.
Expect to see more shenanigans like this as the new administration emboldens fringe elements.
My password is del *.* /s | Y
-- Tigger warning: This post may contain tiggers! --
The Judge didn't refer to the legal precedent in the 1988 case, he merely referred to the 1988 case and then *disagreed* with the precedent set down in that case by saying he saw no distinction between identifying a key or identifying a combination - the combination he refers to is the combination of the safe in the 1988 case, not the passcode to the iPhone. He then equates the passcode to the combination.
Legal precedent can be overturned, its not set in stone forever more, and thats what this Judge is trying to do here - overturn the precedent in the 1988 case by saying there is no longer a distinction between the physical key and the ephemeral combination.
So you're saying that the supreme court can make a ruling that is on point in a specific matter, and sometime later an appeals court judge can decide that legal precedent might be overturned, and we should ask the supreme court once again "is this still your opinion"?
Here I thought that the supreme court was the court of final appeal!
And furthermore, it takes on the order of $2 million to mount a supreme court challenge, so this appeals court judge effectively just dropped a bill for that amount that the defendant *has* to pay, in order to stay out of jail. The defence relied on a supreme court decision, but it turns out that in general we can no longer do this.
And finally, suppose the defendant simply says "I forgot the passcode - it's been so long, and I haven't typed it in, that it's just escaped my memory". The judge can disbelieve the defendant and put him in contempt of court, but otherwise there's basically no crime that the defendant can be charged with for making this statement.
The ruling could have turned on if they were asking for something physical or something the guy knew.
Instead, it appears to have been decided on the fact that the thing was called a 'key'.
A key to a lockbox is a physical thing. Supremes said fair game.
A combination to a safe, something you know. Supremes said no fair.
A key to a phone is called a key, which may be confusing, but it really a passcode which is something you know, which is more like the combination.
This seems straight forward. Not sure why the judge felt this was the right way to go?
This should be obvious.
A key is what you have, but a passcode or combination is what you know.
You might HAVE a kilo of cocaine. Anyone can simply see that and the law allows for evidence to be seized if it's in plain sight or with a warrant.
You KNOW what crime you might have committed, which is why you can't be compelled to testify against yourself.
Having a key seized is very different than requiring you to divulge what you know.
Obviously.
Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.
Some one can make a lot of money by setting up an secret sharing service so that you do not actually know your password.
The company would be owned and operated offshore in many countries some of which will not honor US warrants.
When you start the service a strong password would be setup using the technique of cryptographic secret sharing, so that the password is split on servers in many countries many of which do not honor US warrants.
You also have a authentication password totally controlled by you that proves that you are you.
When you want to use your password, you send a authenticated message to the servers, and your password is reassembled from the parts using encrypted communications by a computer program, so that you never see the password. You could have redundancy so that sabotage at one server would not cause it to break. You could set it up so that it takes M out of N servers to cooperate to get your password, where M is less than N. You could also mix in yourself in the sharing algorithm so that you have one small piece of the password so that the servers can not reconstruct the real password without your help. But your piece would not be enough to reconstruct the real password. Thus, the servers could not pretend to do something without your consent.
When you are detained, your lawyer causes a delay. (Any Lawyer who can not cause a delay is incompetent.) During the delay, a canary tells the servers that you are being coerced, and the servers stop cooperating until you can prove that you are free again.
Use defensive formulation! You bought the service because you were afraid of being coerced by criminals and foreign governments, not because you wanted to evade US laws!
In any case you never had the password.
That the judge in this case is a blithering idiot and this will likely get overturned on appeal, the overall lesson here is this:
Don't store anything on your damn Smartphone that might be used against you. Treat it like the Police own the phone and they're letting you borrow it for a while. Assume that any and all applications you put on it are there to spy on you or report your behavior in some form or another. If you plan on doing anything questionable, don't take it with you.
I use mine to do text messaging, read Slashdot, a few other news sites and take calls. That's it.
The cameras are covered up. The microphone is terrible to the point where using it as a speakerphone is impossible.
I will never allow it access to my bank accounts nor will I ever use it to type in any login information for websites that require it.
Yes it's inconvenient, but I will never trust the platform enough to use it for anything I consider important or critical.
This way, if / when the next blithering idiot judge decides to ignore the Fifth Amendment protections, you can just unlock the phone and let them look at lolcat pictures and Slashdot browsing history until they're blue in the face. Will probably keep you out of jail for contempt or whatever else they make up to coerce you into giving up your pass codes.
Make sure you bring the lawsuit afterwards though.
Can't have them running roughshod over the Constitution when it suits them and you might even be able to retire early.
Translation: If the police "know" you've got it, you have to hand it over. A couple of people have spent their lives in US prison because a witness promised police the suspect had 'the thing'. This ruling, by implication removes the right to silence.
The problem isn't the judge overturning a decades-old ruling, it's the shitty argument he gave for it: That what you know is also property. That will work wonderfully with civil forfeiture laws, because the victim (of police robbery) also knows his credit/ATM card PIN, passwords for banking and email accounts, and similar information for the rest of his family. This ruling means Florida police can commit robbery and identity theft on a grander scale. Will the US federal judiciary or the FBI object to this?
Take the sentence and sue the Government after the fact. The Pacific Legal Fund, EFF, and plenty of others may help with the case. Depending on the circumstances, they may even do so pro bono (I do not work for either so that statement is not worth much).
Unfortunately, the way to prove that the system is unjust is to allow the system to pursue their unjust cases. Historically this is how change occurs, often most effectively by expediting the injustice and not by years of appealing. It is your right and duty to fight for your personal liberty, and if you want it. Stand on your morals or cave in, either has a cost.
-The wise argue that there are few absolutes, the fool argues that there are no probabilities.
So the SC has ruled you have to give a physical key, but not a combination. Very clear. Black comes to the conclusion that a combination to a phone is actually more like a physical key, than a combination to a lock. Ludicrous. The distinction is that a search warrant does not ever allow the government access to information stored in the mind.
> Which means he would still need to assist the government in securing his own conviction. Don't think so.
The fifth amendment says you don't have to give TESTIFY against yourself. It does not say you can refuse to do anything which might assist an investigation. Maybe you'd prefer it said that, but it doesn't.
US law is that a person CAN be compelled to hand over evidence which may assist the prosecution or the defense. Both sides get to see the evidence. You may recall recently Mrs. Clinton was ordered to turn over her private email server. The Constitution says you can't be compelled to TESTIFY against yourself. It doesn't say you're allowed to hide evidence. A person can also be compelled to co-operate in other ways, they just don't have to testify (provide spoken evidence) against themselves. One example of co-operation that can be compelled is turning over the key to a box which contains evidence. The key is not testimony because a) it' not evidence, it's a way to access evidence, and also b) it's not spoken.
That's well-settled law, regardless of your opinion on the subject or mine.
In this case, the contents of the phone is material evidence. A person can be compelled to produce any evidence they are capable of surrendering, so at first blush existing law is that IF the court had ordered him to turn over the photographic content his phone, he would have to comply. However, it seems the court didn't order him to turn over the contents of his photos folder; instead the court ordered him to turn over the passcode. That leaves two questions which apply to determine if the pass code is testimony (spoken evidence):
A) Is it evidence?
If the police found a phone and wanted to prove it was his, him knowing the passcode would be evidence that it's his phone. That doesn't apply here, he admits it's his phone. The pictures are the evidence is stored behind the passcode. The passcode is needed to *see* the evidence, but the passcode itself is not evidence, many would argue. Indeed the prosecutor isn't going to show the passcode to the jury, saying "this passcode proves he's guilty", so it's probably not evidence.
B) Is it *spoken* evidence (testimony)?
It's not evidence at all, so no it's not spoken evidence.
Not spoken evidence = not testimony = not a 5th amendment violation.
As is evidenced by the people here on Slashdot who think that courts should be able to obligate you to do just about *anything* if it might incriminate oneself those who think otherwise need to move. Cause stupid isn't going to give in and we have a lot more stupid big government pro-authoritarian folks who've been brainwashed into thinking that there is a danger or threat around every corner and they will win.
Just because something is immoral doesn't mean it should be illegal. Just because something is dangerous doesn't mean it should be illegal.
What we need is to get rid of the system we have in almost its entirety and roll back the system which ended those rights.
Check out the Free State Project and the Shire Society and Free Keene and Free Talk Live. People are migrating to New Hampshire for liberty and to retake our rights. We won't win spread out and things are already pretty terrible. They routinely imprison fathers and suspend drivers licenses for non-driver offences. From failing to pay impossible-to-pay child support payments (unemployed or underemployed) to failure to pay tolls/parking fees/etc. To matters of graffiti. They are tracking us with automatic license plate readers and are going to start mandating GPS tracking devices in all new cars for "safety". They have taken away our public domain and misled us into thinking copy"right" would be for a limited time. No other business owner gets a monopoly that lasts longer than most of us are alive. Monopolies are suppose to be broken up- but not copy"right" monopolies. They throw us in jail for refusing coercive government tactics (paying taxes) and catch all "causing a public disturbance" laws. They even imprison people for cursing at cops (it's now a 'hate crime').
We need to end this crap. Join me in New Hampshire. I moved in March. States government incarcerate the most people so we can be most effective by joining together to fight big government at the state level and in time focus on hopefully secessionist movement should the circumstances ever devolve to that level.
> It's a real minefield
It is a tricky subject. It doesn't make it any easier when people conflate "what seems like a good idea right now" vs "what's written in the Constitution". Not at all bad ideas are unconstitutional. (If the Constitution prohibited all bad ideas, neither Trump nor Obama would be able to become president).
> What if he revealed the passcode, then there was a hidden 2nd level of passcode with the REAL data? Or a 3rd level? The judge could hold you in jail because he thinks there is a 4th level when there isn't.
What if the judge thinks he murdered his wife? It needs to be proven beyond a reasonable doubt.
> willing to turn over everything he's got. He's just not willing to help them interpret what the 1s and 0s on it mean by decrypting it for them.
Suppose a cop shot an unarmed person. The person survives, but is paralyzed for the rest of their life. The cop is wearing a body camera which took video of the whole thing. The apparent victim sues, and wants to use the video in court. The cop says "here's the body camera. The video is encrypted. I'm not going to tell you the passcode." Has the cop properly provided the evidence? Most people would say no. Most of us here would insist that the truth come out, that the cop must provide the decrypted video.
What if George Zimmerman's security camera recorded him shooting Travon Martin, and Zimmerman encrypted the video evidence?
We need a line of reasoning that makes sense regardless of whether we feel sympathetic to the person who has the passcode - that's the very first requirement of fairness.
It's not an easy question to wrestle with.
Low tech solution. Use dick or tits to authenticate. Problem solved!
Kind of a poor example, because the cop would never be the one in control of the data on the bodycam. Also, different rules would apply since he was acting in his role as an agent of the State.
Don't just stand there, get that other dog!
> So if the judge orders you to "dig up the body", you have to do it? And if you won't (perhaps you even claim that you don't know what he's talking about) then he can hold you in contempt and put you in jail forever?
If proven beyond a reasonable doubt that the defendant hiding the body, the maximum sentence for criminal contempt is two years. The judge generally couldn't order you to dig because it's an "undue burden" given that the prosecution has the resources to do the digging.
> Or can the judge order you to: "Find and show us any pictures of you committing said crime"?
Yes, anyone in possession of material evidence must turn it over. You say "any pictures", for criminal contempt it must be proven beyond a reasonable doubt that you have the evidence.
> I mean I'm no expert in American law, but if you have a rule with the purpose to prevent forced self incrimination (with the technicalities that you are not forced to testify against yourself
That's not "technicalities", that's the exact wording of the Constitution:
--
No person shall be compelled in any criminal case to be a witness against himself
--
The purpose is to avoid the police forcing false confessions through beatings, etc. That happened too often before. There hasn't been a wideapread problem such problem of police beating suspects until they falsely hand over physical evidence ordered by the court.
> which is in it self a pointless rule since you already have the right to remain silent both in speech and writing)
Contrary to the summary in the Miranda warning, there is in fact no absolute right to remain silent in American law. The right enshrined in the fifth amendment is you shall not be compelled to:
Be a witness
against yourself
in a criminal case
That's three elements which all must be true for the protection to apply. You can be compelled to say things that aren't witnessing (speaking evidence) such as filling out your tax form, a selective service card, etc. You can be compelled to testify in a case against your boss or someone else. You can be called as a witness in a civil suit against you.
Also because the bodycam would have "malfunctioned" during the time of the shooting, or the video mysteriously lost instead, but we're getting off topic.
Like most of the rest of us, you can choose to understand he made a mistake, correct the mistake in your mental context and continue on with the rest of the post you have acknowledged as insightful rather than denigrate the value of the individual based on an incorrect term which may well have been auto-corrected by his device.
By all means make a post to provide the correct terminology, but why tear into the writer about it? Why does a single word that is obviously close to the correct one make such a difference to the value of his argument?
Trying to become famous by taking photos. Visit my homepage please.
Eight years of Obama has made this into a police-state - we need encryption to ensure privacy and the 4th amendment. This guy should deny the request till it goes to the Supreme Court - once Trump's candidates are in place, the Bill of Rights will have a LOT more force after years of it being whittled away.
Shouldn't Google be charged with crimes like this too after all they are the biggest voyeurs on the planet.
> didn't the case law in the cited case clearly indicate that he didn't need to turn over the combination.
No, the case mentioned was where the one justice who disagreed with the other 8 mentioned, as an aside, thinking about a combination lock. Eight of the nine justices disagreed.
Waterboard, torture, hold him in contempt, make him watch the new ghostbusters reboot over and over again, the View? How do you force him to do it, other than just stick him in jail for contempt?
The torture argument falls apart once they start using fMRI machines to interrogate your brain without a) your consent, or b) appreciable pain.
And when that's ready for prime time I'm sure there will be court cases about it.
I expect it will go the same way as the polygraph and voice stress analysis : Courts will treat it as unreliable medical quackery and reject it. Police will use it to develop leads and innocent suspects (and psychopaths, who don't have the reactions the equipment looks for) will use it to convince prosecutors and police to stop wasting time and hunt elsewhere.
The real argument needs to be that the contents of one's mind is sacrosanct regardless of technology. Then one says that having exclusive control of a device to compute or remember is legally the same as having an augmented mind, e.g. someone's "iPhone 25" is legally the same as their memories.
But the same argument can be made for paper records, computation scratch paper, letters, pamphlets, and other "papers": They're a prosthetic augmentation for memory, computation, rational thought, and protected speech and communication. While it might be nice to extend the fifth amendment to your "prosthetic mind aids", I suspect the courts will find a closer correspondence with the fourth.
The 4th and 5th Amendment need to be consolidated into a single amendment that states that the contents of one's mind, papers, computers, etc., may nokt be searched under any circumstanseces.
Since the Fourth currently says that your papers and effects can be searched under SOME circumstances, I'd worry that combining the two would weaken the protections of the Fifth more than strengthening those of the Fourth.
What I'd really like to see is interpreting the Third to ban installibang keyloggers and other spyware on your computer.
The point of banning "quartering troops" in subjects' homes was not just that they were a tax to support the army deployment at the colonists' expense: Using the guest bed, eating the family's food, taking up space, etc. It was that they served as spies on the activity of the family members and their guests: Listening to conversations, searching home contents and files, reading letters both incoming and outgoing, reporting what they find back to the military and governmental intelligence services and investigative agencies, possibly leading to prosecution or martial law attacks. They could also disrupt your activities, forge documents with your seal, arrest you, steal anything of interest, destroy anything you have that they think you shouldn't, and so on. It's hard to oppose the current government's policies, even legally, with such a spy in place.
Spyware in your computer has a precisely analogous position: It is "housed" on premises you own, taking up space. It feeds on your machine's processing power to "live". It searches files, both records and programs (your "papers and effects") records your "speech" (in the form of keystrokes) and mail (email coming and going), and reports what it finds to its controllers (also consuming your purchased network bandwidth). It could also alter or delete files and programs, forge email, and so on.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
"Sir, if you could just step into this private room and unlock your device for us..."
You may have noticed that when witnesses claim the fifth before Congress, there is sometimes discussion of granting them immunity from criminal prosecution. Under federal law 18 USC ÂÂ 6002 and 6005 Congress can grant that immunity.
SCOTUS discussed the finer details of this greatly during the 1950s, with McCarthy etc. Some of the SCOTUS opinions are a hundred pages or so long.
My message subject mentioned it, but I forgot to state plainly in the message body:
Under current interpretation of the fifth amendment there are two competing interests:
Congress' power to investigate, or order to make good law.
The 5th amendment.
Those can be reconciled, SCOTUS has ruled, by granting immunity from criminal prosecution. The fifth says you can't be coerced to testify against yourself in criminal prosecution and that has been interpreted to also include instances where criminal prosecution is likely forthcoming. By barring criminal prosecution, the fifth amendment issue is reduced sufficiently that Congress may then compel testimony (with certain other restrictions that are off on a tangent from this discussion).
Let's take this to its logical extreme. Stipulate that the 5th amendment and no other right protects a password known by an individual and they may be compelled to reveal passwords. Further lets ignore if the person claims to have forgotten the password.
How could individuals wishing to protect their privacy arrange that? Easy. Store a password which is not feasible to memorize or plausibly not memorize in a mutable state; the act of seizing the physical embodiment of the password either destroys it or plausibly destroys it. If that sounds like magic, it is not. This is completely feasible.
Now what does the court or government do? The individual gains the benefits of strong password security but does not actually know the password which if it is seized, is destroyed or plausibly destroyed.