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Court Rules In 'Sextortion' Case That Phone PINs Are Not Protected By Fifth Amendment (cnn.com)
An anonymous reader quotes a report from CNN: Can authorities access potentially incriminating information on your phone by compelling you to reveal your passcode? Or is access to your phone's secrets protected under the Constitution? The answer, at least in an extortion case involving bikini-clad models, social media celebrities and racy images, is that phone passcodes are not protected, a judge ruled Wednesday. The case stems from the arrest of Hencha Voigt, 29, and her then-boyfriend, Wesley Victor, 34, last July on charges of extortion. Voigt and Victor threatened to release sexually explicit videos and photos of social media star "YesJulz," whose real name is Julienna Goddard, unless she paid them off, according to a Miami Police Department report. Both Voigt and "YesJulz" are big names on social media. Voigt is a fitness model and Instagram celebrity who starred last fall on "WAGS Miami," an E! reality TV show about the wives and girlfriends of sports figures in South Beach. As part of the ongoing investigation into the case, prosecutors have sought to search Voigt's and Victor's phones and asked a judge to order the two to give up their phone passcodes. Prosecutors have obtained the text messages sent to Goddard, but they have been unable to bypass the passcodes on the suspects' phones -- Voigt's iPhone and Victor's BlackBerry -- to search for more evidence. As such, prosecutors filed a motion asking a circuit court judge to compel the defendants to give their passwords to authorities. A judge on Wednesday ruled on behalf of prosecutors and ordered Voigt and Victor to give up their phone passwords, according to Bozanic, Victor's attorney.
is still pub
make sure to try it 10 times...
We've been snowballing down this slope for awhile, and I don't see someone overturning this either.
The founding fathers are now rolling over in their graves.
The right to shut the fuck up as to not provide evidence of your guilt is as old as dirt. I'd have to just "forget" the passcode at this point.
"Social Media stars" (whatever the fuck they are), and would like to see them all put in prison on charges of assisting cultural suicide, no one should be compelled to give up evidence that incriminates themselves, ever. It's a basic right. Rights aren't granted by the government, but you wouldn't know it from how out of fucking control they are these days.
What're they gonna do - torture them for the info?
It will be appealed and sent to the SCOUTS eventually. With luck they will be willing to hear the case, then beat it down like a redheaded stepchild.
If courts can authorize the search on a device but it is technically impossible because the suspect can't be compelled to unlock the security than it only strengthens the law-enforcement case that they need legislation mandating a back-door into devices. One that can be abused without your knowledge or consent of courts
"As such, prosecutors filed a motion asking a circuit court judge to compel the defendants to give their passwords to authorities."
So the authorities, have to ask the perpetrator to supply their own evidence.. way to streamline charging criminals.
It's not a typo if you understood the meaning!
Frankly, the police are supposed to have gathered evidence and basically made a case before hauling someone in.
If they -require- her phone for the case against her, they pretty much don't have a case worthy of bringing before a judge. There are many other avenues open that they should be able to get compelling evidence from besides a single digital device.
Clearly they must be repealed post haste! I'm sure the majority of the general public agrees with me.
People should have to give up their passwords like they have to give up their thumbprints and dna.
It's like refusing to allow the police to search your home, even after they have a warrant.
Yea this compelling can be abused. My guess is that it's worth it.
This isn't the first case of this. Nothing is going to happen any time soon.
The others are slowly working their way to the Supreme Court.
Until the Supreme Court rules nothing is going to happen.
This is discovery. The defendants threatened to distribute photos etc, from unspecified devices and sources. The prosecution wishes to confirm that such photos etc. exist, for without them there is no case. Defendants refuse to permit discovery.
If this were paper files in a locked box, the prosecution would be permitted top saw the boxes in half. The media should not change the law. That a document exists is generally not a Fifth Amendment issue. That the document is purely electronic need not matter.
I've changed my mind on this. On a fishing expedition, prosecutors should be denied secured material they cannot specify. In this case they seem to know just what they are looking for, and where it is. The defense cannot reasonably claim innocence based on the lack of evidence when it is plainly able to prove the lack.
But that's too easy.
deleting the extra space after periods so i can stay relevant, yeah.
I suggest Apple should introduce various secondary "Red Herring" passcodes which users can set.
If a secondary passcode is entered, then a User-configurable action occurs. They may be allowed to unlock the phone after contacting Apple's servers to determine if the Passphrase is actually the user's primary passphrase or not.
If a passcode marked as duress is attempted to be used to unlock the phone, then keys in the secure enclave will be quietly and irretrievably corrupted; Notice of what has happened will not be shown on the screen until either contact is completed with Apple's servers, ensuring that the phone completed its command sent to Apple servers to successfully overwrite the backup version, Or another attempted passphrase is entered; The message displayed will appear to indicate that a Correct passphrase has been entered, However, it will show an error "Error 53: Valid unlock code accepted, but system storage is corrupt, cannot boot.".
Why didn't the judge just force the accused to run his password to prove his innocence in this special case? The Judge didn't need the password. And special cases should be made rare, targeted, and limited to what the person is accused of! Find something else? Tough luck!!
Take the exact same case, but replace the phone with a safe, and the PIN with the combination to the safe's lock. In this instance, the 5th Amendment absolutely protects from being compelled to unlock the safe or provide the combination to open the lock. Now having said that if the police have a warrant for the contents of the safe because there is reasonable suspicion evidence pertaining to the investigation is contained within, they are absolutely free to seize the safe and attempt to open it via other means (locksmith/physically cutting/breaking the safe open/etc). In the same manner, if the police have a warrant for the contents of the phone's memory in this case, they are within their rights to attempt to guess the PIN or break the encryption on the phone. You could argue that's much harder than breaking into a physical safe - and that is usually the case - but frankly that's not the defendant's problem. Just because it's hard for the police to obtain potentially incriminating evidence does not compel one to surrender it. This is a flagrant violation of the 5th Amendment, and I cannot believe courts continue to skirt such a fundamental part of our legal system because police are throwing a fit about encryption being unfair.
That's a white girl in a black woman's body. Not that there's anything wrong with that.
The prosecution already has evidence that the couple sent extorting texts. It doesn't matter whether an extortionist actually has possession of extorting material, it only matters that they were trying to get money for such. Perhaps the prosecutor wants some jack material?
No judge or prosecutor can compel you to testify in your own trial, and they cannot force you to tell them something they wish to know. Were I in such a situation I would simply say I don't remember the passcode. Sure they can charge you with obstruction, if they can prove it. But if you're already a criminal defendant the threat of adding another charge isn't enough to compel you to unlock your phone.
The analogy of a locked safe is perfectly adequate here. I have no obligation to tell anyone the combination. Investigators who lawfully take the safe under a court order can do whatever they want to try and open it.
given that by the time this makes it up to SCOTUS it'll have 2, maybe 3 Trump nominees. Trump has not shown himself a fan of the 5th (or any other constitutional right) unless he's invoking it.
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The police have gathered evidence of a crime and have issued a seizure order, that is normal. The problem being they need the accused to incriminate himself to complete the seizure. That is a grey area where the US fifth amendment tends to protect the suspect or the accused.
This ruling follows a much weaker case of a few months ago where a judge ruled a suspect must deliver any passwords to the police, so it not surprising that a case with with the benefit of preliminary evidence gets the same result. The problem being, US courts produce blanket rules and this rule will quickly be applied to suspects (again), persons of interest, car-stops and their human equivalent; 'stop n frisk'.
How can they possibly know that the defendant actually knows the password? People forget passwords all the time.
Regardless of whether it's true in this case, if we allow this to stand then some day a court is going to order a guy to provide a password he genuinely doesn't know. He'll never be able to comply, so the criminal justice will just beat on him for years for violating the court order.
The prosecution and the judge must have thought of this danger, but they are just charging forward anyway. Law'n'order zealots don't care about justice.
Not to justify what their intent was, but.. The stuff you have in your head is protected and unreachable by ordinary means. The stuff outside- like your fingerprints are fair game which is why people don't use touch ID in many cases. You might be detained, sure.. but you'd have plenty of support both citing the law and making comparisons to slippery slopes etc.. The justice department needs to pick the right hill to fight and die on.. You can't detain someone forever without calling it arrest. Arrest happens when you're caught doing something wrong or there is probable cause that you did or took part in wrong doing, and in that case you have the right to a speedy trial which can't really happen without the proof. And the key to this proof is in these people's heads. Or maybe not. Can you compel someone to give up their rights on the basis of suspicion alone?
Show your proof of wrongdoing by presenting the evidence you have. Don't have evidence? Where's the case? If we were to charge and incarcerate people for being assholes then our jails and the jails all around the world would overwhelmingly overflow like a scene from World War Z within mere seconds.
Your honor, I have been incarcerated for so long that I have forgotten the PIN.
what's to stop the authorities from planting evidence on the phones? Yes, I know that's unlikely in this case - but entirely aside from the constitutional violation, this precedent just begs to be misused by LEO's, many of whom would much rather chalk up a 'win' at the expense of innocent citizens than invest the time and sweat required to either uncover the truth or determine that they can't do so. This is a really BAD idea.
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Blame the gradual erasure of search and seizure on the decades long drug war. That's what's caused the erosion of civil liberties, not Trump's one appointment (who hasn't really ruled on anything) or potential future nominee for the court.
People aren't getting raked over the coals for their private information just recently, it's been going on for decades as law enforcement, district attorneys and their political supporters have green lighted aggressive drug searches which have given the courts many opportunities to rule in favor of the police, like rain eroding a sand castle.
IMHO, our protections from search and seizure are all but gone. Civil forfeiture is still alive and well, for crying out loud. The NSA hoovers our data, local police use Stingrays, etc.
No Supreme Court appointments by any party are going to change any of this, they're mostly just reinforcing 50 years of progressively worse precedence.
I have a feeling this judge will be overturned. In any case, if I remember correctly, the 11th circuit says this type of information is protected, so if a different circuit rules otherwise it will set the stage for a supreme court showdown.
Since the 70s SCOTUS has used something called the "act of production doctrine", which basically says that you have to produce some piece of evidence under subpoena unless the act of complying in itself bears on your possible guilt.
So a court can subpoena the contents of your safe, even though those contents will incriminate you. They can't say, "Deliver us all documents related to your bribing of an official," because to comply with that demand is to admit guilt.
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Did we already abolish the 4th? Or does a phone not count among your personal effects?
Prosecution: "This is your locked phone, provide the password"
Defendant: "I tried my password, it doesn't work"
Judge: "You are held in contempt until you give your password"
Indefinite detention without conviction--there's your abuse scenario. Took about 10 seconds.
I went to the YesJulz instagram page. Now I feel like I was this close to viewing kiddie pr0n. Deleting browser cache.
The Russians have won. They have made the world a cesspool of distrust, greed, fear and hate.
The problem with "You have to give us your password/PIN/combo/whatever or be in contempt and go to jail," is that even if you are ok with any constitutional issues (or perhaps are from a country without such protections), it is still open to a big issue: What happens when someone forgets? People forget their passwords ALL the time. Anyone who's worked in IT can tell you and yes, this includes things like phone PINs. Problem is with a law like this, you can go to jail, forever. The police demand access to something of yours that is encrypted, you can't remember the password, you get thrown in jail until you give it up. Since you legitimately can't remember, that is the rest of your life.
This gets even more problematic when you consider that good encryption looks just like randomness, and good stenography is undetectable. So a random bit of data in a deleted area on the harddrive: Hidden encrypted data, or just leftover garbage from something the system did? All those high res photos of random shit nobody cares about: Just your hobby and data hoarding, or used to hide encrypted stego data? There is literally no way to prove which, presuming that it was done right. So if the police can say "Decrypt this or else," and it isn't actually anything encrypted, or at least not something you have the key to, then there's a real problem.
Sounds like they have pretty strong probable cause, so this would be more along the lines of withholding evidence / refusing a search warrant than the 5th.
I mean, this seems like the proper way to do it rather than to, I don't know, try to force phone manufacturers to unlock it for them...
This "no self-incrimination" thing should not be viewed as some God-given right. It is simply due to the fact that when your teacher asks "Johnny, did you pee on the toilet seat?" your incentive to lie is so high that it is better to not depend on your testimony. This is not the case with passwords and similar, where the judge can instantly see whether it is correct. That said, "I forgot the password" is of course possible and should be believed unless proven to be false.
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To be admitted under oath. It was not in its beginnings an unconditional right to withhold relevant information from the courts to protect your own interests. Refusal to surrender a key can be legitimately considered contempt of court --- and that will have consequences. But you are not being forced to take to the stand and flat out admit to having committed a crime.
I absolutely agree that backdoors are a terrible idea. But what happened here however was perfectly fine to my mind. The police already had strong evidence linking the suspects to a crime, the evidence was reviewed by a court - and the suspects were only compelled to give up their passcodes after a judge, in a public and open court, determined there was genuine probable cause.
That's exactly how it's SUPPOSED to work.
Unicode killed the ASCII-art *
She looks about 25 to me...
They don't have to give passwords to a phone in the same way a person doesn't have to give up a combination to a safe or briefcase, especially if it holds incriminating evidence. The right to not self incriminate is an important thing. Only a totalitarianism regime would require a person to incriminate themselves. The hell is going on with this country, law enforcement and the judicial system not obeying the constitution is rampant. We have due process and laws for a reason, to protect the public against an out of control government. Even having a debate on this topic instead of following the law is worrying.
If the police have strong evidence that the stolen diamonds are in your wall safe, and that the things is rigged to blow if they try to crack it - do you think a judge could NOT compel you to give up the combination ?
...but you still have the right to remain silent. In the US under Miranda's rights, and under similar rights in lots of other jurisdiction elsewhere.
Note that in this case, given the *strong evidence* and and your obstination of not revealing the safe's password, you might start to look really suspicious(*) to the jury/judge (whatever is relevant in your jurisdiction).
Then again, to keep your metaphor, any thief with half a brain cell will very probably NOT stash the diamond in their own safe at home, but try to hide them in some place that nobody would think about. So they can safely show that the safe is empty of diamond, so that police can't manage to find the diamond, so competing thieves can't manage to get a grip on them, and so, once the steam blows off and nobody bother to keep an eye on the case, the thief can discretely retrieve the diamonds and enjoy them.
Here we have some idiots who decided to blackmail a victim *USING THEIR OWN FUCKING PHONES*. The devices that can easily be confiscated by police, with message logs that can be easily traced back to them, and the fact that they chose to remain silent might look a little bit strange(*).
---
(*): though not necessarily.
there's a scenario were the person might be innocent, but have some personal detail that they want to keep secret (e.g.: being gay and the publicly official partner being only "a bread". specially in culture that carries a stigma around homosexuality, or worse, in a jurisdiction with "sodomy laws" that considers it illegal)
on the other hand, if all other evidence points to guilty, they case won't be hinging on the sole content of the phone/safe...
"Sufficiently advanced satire is indistinguishable from reality." - [Tips: 1DrYakQDKCQ6y52z6QbnkxHXAocMZJE61o ]
Perhaps it is... but I am still quite edgy about the idea of being compelled to say what others want to hear.
I agree. Probable cause - tick. Warrant, tick.
Cue the "OMG Gubmint freedahm111eleventyone!!!!!" from the peanut gallery...
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
I absolutely agree that backdoors are a terrible idea. But what happened here however was perfectly fine to my mind. The police already had strong evidence linking the suspects to a crime, the evidence was reviewed by a court - and the suspects were only compelled to give up their passcodes after a judge, in a public and open court, determined there was genuine probable cause.
That's exactly how it's SUPPOSED to work.
Compelled speech is evil.
I'm a minority race. Save your vitriol for white people.
Is it speech ? Or is it "Here's a search warrant, unlock the damn door".
If you really want to get finicky then the order can be changed to force him to enter the passcode himself and, under supervision by an oficer of the court, disable it - and he never has to reveal it.
It's not speech, it's a key - a judge has every right to compel you to hand over the key to private property when a duly justified search warrant is issued pursuant to probable cause.
Unicode killed the ASCII-art *
I have the right to remain silent. In free speech cases, art, movement, written and spoken words have been found to be "speech."
I have the right to show you the finger or not. There are repercussions for using free speech, but those should never come from "the state", which a judge represents.
If the state can open a safe, then they are allowed to see the contents. If they cannot, it isn't the defendant's place to open it for them.
In short, screw you. It isn't my job to help the cops as they attempt to rail-road the closest person into jail.
Is it speech ?
It's speech. Compelling me to say one thing (password) means they can compel me to say anything, in which case why don't they simply compel me to confess and get it over with - no need for the password.
Or is it "Here's a search warrant, unlock the damn door".
It's not. It's "Here's a search warrant, now tell us the contents of your mind."
If you really want to get finicky then the order can be changed to force him to enter the passcode himself and, under supervision by an oficer of the court, disable it - and he never has to reveal it.
It's not speech, it's a key - a judge has every right to compel you to hand over the key to private property when a duly justified search warrant is issued pursuant to probable cause.
Many things are not one or the other but a mixture of both - the password which you call a key is also my private thoughts. If the key conflicts with my right to private thoughts, which should win? Should we take away private thoughts?
"You must say what the state tells you to say" is something out of a 1984 dystopia. "You must say what the state tells you to say" is thought-crime.
I'm a minority race. Save your vitriol for white people.
It's compelled speech. It's not the responsibility of the accused to provide access to incriminating evidence. On the contrary, he has a legal right to avoid self incrimination.
A warrant provides authorization for the government to look for something; it's not a guarantee that they can access it or find it. This is no different from "tell us where the bodies are." Sure, a guilty suspect can cooperate (but, crucially, an innocent suspect cannot), but that does not mean he must, or that non-cooperation can be used against him.
Many judges seem to have lost their appreciation for the rights of the accused. That's understandable when confronted with a never ending stream of clearly guilty people, but it's not in keeping with the values we claim to hold.
Passwords/passcodes are not protected under the First Amendment, they are not considered speech. They may be protected, as a key on a keyring, under the Fourth or Firth Amendments. But those same amendments provide for a legally obtained warrant, if there is enough verified evidence in support of probably cause, to legally justify such a warrant.
If it's a legally obtained warrant, based upon valid proof of probably cause, negating the Fourth and Fifth Amendments, as the Constitution does provide for a legally obtained warrant.
Calling it speech is just a way to try to muddy the waters and make the issue unclear to the masses, in the hope of getting support from those who have never read the Constitution or researched the legal precedents regarding these issues.
You should, under no circumstances, conduct any business on your phone that you would have issues with should the information contained therein be made public.
Do not conduct any of the same business on any computer or network you utilize for legitimate purposes as well for the same reasons.
Consider anything network connected to be compromised and / or a potential leverage point for the opposition to use as evidence against you.
I checked the instagram that comes up at the top on the google search too - not having the slightest clue who she was. With 86 posts of mostly nothing, I was surprised they'd say she was a social media star. So I googled again, and found a bunch of articles - including in the NYT - that say she is a snapchat superstar.
I don't do the whole snapchat thing, so I didn't know you could be a snapchat superstar. In fact, I thought the point of snapchat was to keep things from getting out to the public. Shows what I know.
Anyway, a google image search shows that she's a model/party girl with a big booty who does promotions and hangs with the cool crowd, including pro athletes, rap stars and DJs. She has a company that does social media PR stuff.
She also seems to be very good with photoshop, judging by the contrast between paparazzi photos and her own self-posted photos.
So I'm not sure if that instagram account has anything to do with her or not. But it is clearly not what she is known for.
I can't give my password as my password is an admission of wrongdoing.
A warrant gives pigs permission to search. There is absolutely nothing in the Constitution that says they get to force their victim to help with the search or that they get to guarantee that search will be successful. Bad judge.
Was the defendant Mirandized as in, "You have the right to remain silent"? One cannot be compelled to speak.
"I have no recollection of that."
If top govt officials cant recall spending millions overseas funding terrorists seems like you could use the same for your phone PIN.
I dont remember.
After 10 incorrect attempt the phone wipes itself
**Life is too short to be serious**
I agree with you. Apparently though - not everybody does.
Unicode killed the ASCII-art *
Reminds me of a joke. All the Intelligence agencies are in a competition to find out whose best. The competition is to find a deer in a forest.
The CIA goes first. They use Satellite images, do image analysis and find the deer in 5 hours
The KGB goes next. They go and pour vodka at the roots of every tree. The Tree which starts swaying is the Drunk deer . They find it in 1 Hour
MI6 goes next. They send out an agent in a female deer suit. The Deer comes running. They find it in 10 minutes
Saddam's Iraqi intelligence goes next. They spend 20 hours and cant find the deer. Then they catch a tree and start beating it "Confess Confess You are a deer"
American Law enforcement is beginning to look more and more like Saddam's Mukhabarat - stupid and lazy.
**Life is too short to be serious**
If what we know about ourselves and it not passed to a 3rd party, that is our information. As OUR information, we are not required to use that to incriminate ourselves. It is the burden of law enforcement to get proof. While information SENT is out of the hands of the the accused, knowledge in the MIND of the accused is still their PERSONAL information, compelling people to give what is in their mind sets a DANGEROUS precedent: Why not just skip trials and put electrodes on people's head, or use truth drugs, or any number of methods of coercion techniques used by the Russians and Germans (or even us, unofficially of course at, say Guantanamo Bay)? Forcing the accused to basically give information to incriminate themselves, even for codes to their data, is a slippery slope because people with various motives can say, why stop there?
"Imagination is more important than knowledge" - Einstein
The Fifth Amendment is not affected by warrants, dipshit.
But my passcode is "I killed Scalia"
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I actually have no problem at all with the government trying to get the information, heck even compelling a third party to crack the phone. I do have a problem with them compelling someone to provide information against themselves or provide information they could have forgotten.
You'll be fine. Nobody arrested Bob Marley for singing "I shot the sherrif" you know.
Unicode killed the ASCII-art *
I picture it more like the accused having 10 keys, 9 don't work, but the government compelling them to tell them which key works. I don't like it. Additionally, even if it has been legally validated, I don't like the idea of a person being compelled to provide information against themselves. Have Apple or Google crack it, not a problem to me, I draw the line at forcing an individual to provide information or material support against themselves.
I actually have no problem at all with the government trying to get the information, heck even compelling a third party to crack the phone. I do have a problem with them compelling someone to provide information against themselves or provide information they could have forgotten.
Exactly.
It will (probably) be appealed, and if so over-turned by a higher court. If not, some other phone-PIN case will come up in a higher court, rendering this one decision moot.
Obtaining stuff by regular warrants still applies. But regular warrants are very specific, not licenses for 'fishing expeditions', which a smartphone PIN would effectively be.
A confession is evidence that you did whatever you're confessing to. Your pin is not evidence that you did anything, it is only evidence that you know how to access the phone. If they already knew and could prove that you know how to access the phone, then providing the pin is not generating evidence against yourself and the 5th does not apply (according to my best understanding of current doctrine).
You can always lie.
Give them a complex-looking 'password' that has nothing to do with the real one. They fuck it up (or force you to fuck it up). Your phone gets bricked. They get pissed and threaten you with contempt. You get pissed and accuse them of having screwed with your phone and that's why your 'password' didn't work. No one can prove anything; your data is now safe from prying eyes, forever.
Of course you're a fool if you have a smartphone in the first place, and if you're foolish enough to have one, to store anything of value on it in the first place.
That's because he didn't shoot the deputy.
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Passwords/passcodes are not protected under the First Amendment, they are not considered speech.
They may be protected, as a key on a keyring, under the Fourth or Firth Amendments
Here's my problem.
If I have a key, I can be compelled to surrender it. I accept that.
With a PIN, Password, of combination, I have to say something.
If you can force me to speak the truth, then I have no right against self incrimination. In other words, forcing me to speak the truth of something I know, you can force me to confess. After all, police may try to get you to open your safe, but more likely they'll just call a safe cracker and open it without my help. I don't see the difference in ordered encryption back doors, forcing Diebold to manufacture bank vaults with "police bypass combinations", or ordering me to tell the truth and not remain silent. Sure as anything, sooner or later folks that shouldn't have it will, or that the police themselves will abuse it.
Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.
Well its debatable whether an arbitrary 4 digit number counts as "information against yourself," but I think you'd have a hell of a time convincing anyone that you'd forgotten the PIN from your active phone -- especially if they've pulled phone records and shown that you've used it recently, which seems to be the case at least this time.
The cop can't compel you to speak, but the court can. Just like the cop can't break into your house without a court order.
The fifth protects you from speaking against yourself, but the court can ask you about anything else and compel you to answer or be held in contempt.
The question is really "does the PIN, by itself, count as incriminating evidence." I personally tend to think that it shouldn't. If you don't want the cops to find incriminating evidence on your phone, then don't store incriminating evidence on your bloody phone. Just like it would be stupid to store stolen goods in your house.
Is it speech ? Or is it "Here's a search warrant, unlock the damn door".
If you really want to get finicky then the order can be changed to force him to enter the passcode himself and, under supervision by an oficer of the court, disable it - and he never has to reveal it.
It's not speech, it's a key - a judge has every right to compel you to hand over the key to private property when a duly justified search warrant is issued pursuant to probable cause.
No. They do not. They judge can issue a warrant to allow the investigators to access the information. The can break down the door. They can sieze the equipment. They can pick the locks.
The order compels you to not interfere. It does not compel you to assist. They cannot force you to do anything.
I'm sure the defendants would be allowed to unlock their phones themselves, without revealing the password. It's happened before. There's no need for speech or sharing information.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
Passwords/passcodes are not protected under the First Amendment, they are not considered speech. They may be protected, as a key on a keyring, under the Fourth or Firth Amendments. But those same amendments provide for a legally obtained warrant, if there is enough verified evidence in support of probably cause, to legally justify such a warrant.
If it's a legally obtained warrant, based upon valid proof of probably cause, negating the Fourth and Fifth Amendments, as the Constitution does provide for a legally obtained warrant.
Calling it speech is just a way to try to muddy the waters and make the issue unclear to the masses, in the hope of getting support from those who have never read the Constitution or researched the legal precedents regarding these issues.
Wrong.
They may take a key. They may pick a lock. They cannot force you to open a lock for them.
"Tell us where the bodies are" is legal only if it can be established that the defendant does, for some reason, know where they are. This is not normally the case before conviction. Otherwise, the defendant being able to locate the bodies is relevant evidence in itself, and so telling the police would be self-incrimination. Similarly, if you're shown a phone that might be connected with a crime, whether you can unlock it is relevant evidence, and so the defendant is legally allowed to refuse. This phone was known to belong to the defendant.
The rights of the accused are limited. In particular, the accused need not admit any capability that would suggest the accused committed a crime. The accused, in this case, is required to do something the court knows the accused can do.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
You can be legally required to speak truthfully when it does not incriminate you. This means that the court already knows you know the passcode. If there's any question whether you know the passcode, and the phone might be linked to a crime, then unlocking the phone shows that the phone is linked to you, and that's self-incrimination.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
How about being compelled to disclose the truth as you know it?
It's accepted that 'files on a computer' is the equivalent of 'papers' in the constitution. Did the concept of an unopenable cabinet exist back then?
No, it didn't.
So, the intention was that with the appropriate warrant (yadda yadda oath or affirmation yadda yadda things to be searched for) they could look at the documents in the cabinet.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
Whoosh.
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Comment removed based on user account deletion
The cops already have the phone and all the evidence on the phone. The fact that they are unable to interpret it is not the defendants problem and the defendant should not be compelled to provide the information that is only in his or her head that will be used to convict them
The warrant gives the government the right to search for an item or to seize an item. It doesn't not compel the defendant to tell the police where the item is. If the government doesn't have the key it may get a warrant authorizing it to enter the place or object without a key. Like the location of a key the defendant shouldn't be compelled to give away information of which he is the sole possessor that would be compulsory self incrimination.
A 4 digit pin, or any password for that matter, is knowledge. When you divulge what you know, you are testifying. In this case, they are asking the suspects to testify against themselves.
A 4 digit pin, or any password for that matter, is knowledge. When you divulge what you know, you are testifying. In this case, they are asking the suspects to testify against themselves.
That's absolutely correct. The right to not be forced to testify against oneself is a fundamental right in a free society, and as such is protected as a right "retained by the people" under the 9th Amendment, "reserved to the people" under the 10th Amendment.
The prosecutors and judge involved in this case violated their oaths to uphold the Bill of Rights. It's yet another example of illegal conduct by government officials. The Bill of Rights is treated like toilet paper.
Further, it's a right any reasonable person would expect to have, and thus this is directly a violation of the right to ethical practice of law. Unfortunately, that means the US legal profession will line up on the side of the government, since the practice of law in the USA can not withstand scrutiny on a legal ethics basis. The lawyers are terrified that all the dirty little stuff that helps them make a living will be brought up in any such case - as it should - so they'll do the best they can to squash any matter in which that could happen.
It was wrong when German government officials violated fundamental human rights - no matter what their laws said - or so they decided at Nuremberg, but government in the US continues to do exactly that, aided and abetted by a largely unethical legal profession. It's a sad state of affairs. It took a massive multi-decade Civil Rights movement to correct this kind of thing when Jim Crow was around, what will it take to fix things this time?
Compelled speech is not prohibited. Compelled incriminating speech is. Unless your password is "IMolestSmallChildren123", then your password isn't incriminating, even if the things unlocked by the password are.
Learn to love Alaska
If the police get a warrant to search my house, and all my documents are written in Sanskrit, can the court compel me to translate everything into English for them?
I think it just needs to come before judicial review. Ideally a competent legal team could explain the three authentication factors:
Who you are:
- Fingerprint, iris scan, any other form of biometric identification.
- The government does have the right to compel you to identify who you are when you stand before a judge; this is well established, and the constitution doesn't offer any protection against this. Anonymous speech is a different subject though, and it is constitutionally protected.
What you have:
- Keys, fobs, ID cards, rfid tags, or any other physical object that isn't part of your body.
- The government can compel you to turn over physical items that you have, provided a warrant is given. This can include things like documents, in addition to other physical evidence such as a bloody glove.
What you know:
- Information, passwords, PINs, events you've witnessed but haven't written down (if it's written, it's physical, and can be turned over.)
- Things that you know are well protected by the 5th amendment. The constitution is quite clear about that. Even if the government has proof that you know where a dead body is, they can't compell you to testify where its at (though they can offer you incentives, like how after Hans Reiser was convicted of murdering his wife, they offered to commute his sentence from death to life if he revealed where he hid her body.)
And if you forgot or remember the pin code incorrectly? Should you been thrown in jail? Who has the burden of proof in those cases?
There are many issues where relying on someone's memory is problematic..
I know people that have forgotten their pin after not using it for a week...I know people that have it written down to unlock on powercycle and then only use fingerprint to unlock...
Next issue is what happens to your memory when you get put in a highly stressful situation like this..
If you rely on someone's memory they would have to be able to prove that they know the information, and that is something that is impossible to prove (except installing a pin sniffer and checking if they could unlock it later)..
Compelled speech is not prohibited.
I did not say that compelled speech is prohibited. I said compelled speech is evil.
A state that force its citizens to divulge their thoughts on threat of punishment is evil. Citizens who support punishing those who refuse to reveal their thoughts are similarly evil.
I'm a minority race. Save your vitriol for white people.
So everyone who doesn't think like you is evil.
That's evil.
Learn to love Alaska
So everyone who doesn't think like you is evil.
I didn't say that. I said that supporting the punishment of people who refuse to reveal private thoughts is evil.
I'm a minority race. Save your vitriol for white people.
Everyone who thinks that compelled speech is not evil is evil, yes. It is just so clearly unethical and immoral. It's basically anti-human because human societies that promote/allow such behavior have a strong tendency to be dystopian.
Quite an experience to live in fear, isn't it? That's what it is to be a slave.
Being compelled to give information that WILL be used against you?
Please go re-read the Fifth Amendment.
oh, well, if we want to get into how it _should_ be, I can totally see your point of view. I was just trying to explain how the courts see it presently.
Sure judge, no problem password is
S**k my d**k
Citizens who [don't agree with me] are similarly evil.
Close enough.
Learn to love Alaska
Citizens who [don't agree with me] are similarly evil.
Close enough.
Most people agree that supporting evil things makes one evil. Get over it.
The only line to be drawn is where evil begins.
I'm a minority race. Save your vitriol for white people.
Your inability to acknowledge that anyone could hold a valid opinion that doesn't agree with yours makes you evil. Regardless of the evilness of thought police, you are still evil.
And no, me pointing out your (or you're, though different meaning, they both work in this case) evil in no way implies any particular position on thought police.
Learn to love Alaska
Your inability to acknowledge that anyone could hold a valid opinion that doesn't agree with yours makes you evil. Regardless of the evilness of thought police, you are still evil.
Of course they can hold a valid opinion - that doesn't necessary mean that all opinions are valid.
(Hang on, do you actually think that all opinions are valid?)
I'm a minority race. Save your vitriol for white people.
As long as you can draw it in blank and white, it should fit your simplistic view of morality quite well!