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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.
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.
You *DO* have the right to take photographs in public (at least, in the United States). But the defendant has an incorrect interpretation of this right.
The right to take photographs of individuals in public, from a public location, does not extend to situations in which the subject has a reasonable expectation of privacy. This means that "upskirt" photographs, or similar covert attempts to photograph people in a way that exposes that which is not visible under normal circumstances, is not a protected right. The basic reasoning is that by choosing to wear clothing that obscures your body in public, you have a reasonable expectation of privacy that no one is going to take photos from a point of view that would reveal what is under those clothes.
or it didn't happen.
The 5th amendment is pretty simple:
[...] nor shall be compelled in any criminal case to be a witness against himself[...]
Giving the passcode to your phone is being a material witness against yourself.
You are divulging something that will be used against you that is not in a physical form and is only in your brain.
Had you written the passcode on a sticky note and put it on the back of your phone, then they could use that sticky note against you.
whois gawk date unzip strip find touch finger mount join nice man top fsck grep eject more yes exit umount sleep dump
heh my is 'sudo rm -rf /'
whois gawk date unzip strip find touch finger mount join nice man top fsck grep eject more yes exit umount sleep dump
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.
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.
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.
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.