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.

Comments

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[Anonymous Coward]

make sure to try it 10 times...

As much as I can't stand

[clonehappy]

"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.

Re:As much as I can't stand

[MrKaos]

"Social Media stars" (whatever the fuck they are), and would like to see them all put in prison on charges of assisting cultural suicide,

Along with banning them from the net for all time.

Perhaps we should be considering an IQ test for potential netizens. People who are too dumb or trollish only get read access to the net until they are educated enough to use it properly.

Fuck them for opening the door to this legal precedence.

Re:As much as I can't stand

[Falos]

I'm not wasting time discussing rights or origin of freedom. There's no need for semantics, because I'm going to discuss raw logistics. The reality, in any words, is that the owner of a password has 100% control and everyone can only "ask" (even with a blowtorch) for it.

This imbalance will (sooner than later if so pressured) manifest itself, no matter how hard the law stomps its feet and yells.

Off the cuff example of manifestation: A password (digital key etc) can send itself off to a random acquaintance, with instructions not to contact you because "an unexpected duress has occurred" and to wait until it passes. The trigger can be a deadman switch or what you will. Obviously the password is now the new unknown.

You can't demand something I don't have. Even with a $5 wrench. Go fuck yourself with the piece of paper you thought was magic. It doesn't matter what you think of Shoulds or Who Grants What or anything because the password is GONE, words will change nothing, discussing it will change nothing, torture will change nothing, you could use a brain slug and it's still G-O-N-E.

They can probably stomp their feet about destroying evidence or something, if they're in a punitive mood. The lawyers can argue about unconfirmed allegations constituting evidence, or measures that were benign when placed, or whatever. Still gooo~oooone.

This is the same stupidity that led to warrant canaries.

Re:As much as I can't stand

[zippthorne]

Legally, rights are just limits on government power. They are granted by the Constitution, which is kind of the government

In the context of the constitution, rights are presumed to be intrinsic to the individual. They are protected by the constitution.

This is somewhat a matter of belief - if people believe the above misconception that rights are granted by some kind of authority, it becomes the truth, and those who lust for power will seek to become that authority and decide what rights to bestow.

Re:As much as I can't stand

[swillden]

A search warrant is different from a compel-you-to-incriminate-yourself warrant.

A search warrant cannot compel you to testify against yourself, but it absolutely can, and very often does, compel you to give police access to locations, items or data that can incriminate you. You can be compelled to give your breath, your fingerprints, your blood, your saliva. You can be compelled to provide access to your house, your car, the contents of your safe, or safe deposit box. You can be compelled to find and provide the (physical) keys to your stuff.

What the 5th amendment says is:

No person [...] shall be compelled in any criminal case to be a witness against himself

That's it. You cannot be compelled to be a witness against yourself. But you can be compelled to provide access to physical evidence, documentation (paper or electronic), biometric data or virtually anything else, even if you know full well that doing so will incriminate you.

A lot of people have theorized that passwords provide a loophole to this otherwise well-established case law, that because a password is information, that being required to give it is somehow being required to testify against yourself, that a password, an "information key" is different from a physical key because it's information. But that's a pretty weak argument. It's very hard to see how telling your password constitutes "being a witness". You're not providing any information about the crime, you're just handing over a key.

I suppose the one exception is if you can argue that the password itself, not the data on the systems it unlocks, or the data that it decrypts, actually incriminates you. If your password is "I killed sarah and dumped her body behind my grandmas old barn", then you can probably plead the 5th. Maybe. The prosecutor could just offer to immunize you from any incrimination that arises from the password itself, or anything that might be inferred or discovered from it (like Sarah's body) other than what is contained in the data it unlocks.

In general, though, I don't think that being compelled to provide your password is inconsistent with either the letter or the spirit of the 5th amendment. I think it'll take some more rulings, and it will be appealed up to the Supreme Court, but I'm pretty sure that's how it's going to shake out.

Re:As much as I can't stand

[sexconker]

Legally, rights are just limits on government power. They are granted by the Constitution, which is kind of the government. Your rights are not guaranteed freedoms, rather freedom is implied within the scope of the limits that your rights represent to legislative overreach.

You're exactly, 100%, fucking wrong and retarded.

You've missed the entire fucking point of the declaration and the constitution and its amendments. Rights and freedoms are not granted by the government, they are natural and inalienable, with very fucking explicit language stating that the government has no business restricting said rights.

Re:As much as I can't stand

[fafalone]

The 5th Amendment has been read more broadly than that. It (theoretically) prevents you from using the contents of your mind to assist in your own prosecution. That's why they spend so much time comparing it to a physical key-- because if it's recognized as the contents of your mind, it's covered under the 5th. What if it wasn't on this magical electronic device, say the police found a piece of paper in your house that had a weird language on it, but were convinced they knew what it would say... would translating it for them be using the contents of your mind, or like providing a physical key?
Then there's the issue of memory: you then have to accept the inevitable conclusion, that the punishment for forgetting your password is a life sentence, because you can be held in contempt until you provide it. People have said it's unlikely to be forgotten if it had been used frequently; but once the device was seized it was no longer used frequently. I had a combo lock in my college dorm that I opened every day for the entire first semester. When I came back from winter break, I absolutely could not remember it and after hours of trying I had to cut it off and get a new one. And that was far less complex than most passwords.
So at the end of the day, if it's something you can forget, it's the contents of your mind that are being used to translate an indecipherable text, and thus should count as testimony as per previous 5A jurisprudence, and is unequivocally in the spirit of the 5th. Judges saying otherwise are once again finding a loophole that doesn't exist in order to let law enforcement run roughshod over constitutional rights.

Re:As much as I can't stand

[Hognoxious]

Rights and freedoms are not granted by the government, they are natural and inalienable

It may say that, but is it true?

In another bit it claims that rights are granted by some man who nobody's actually seen and who a sizeable number of people don't believe exists.

Re:As much as I can't stand

[jittles]

But you can be compelled to provide access to physical evidence, documentation (paper or electronic), biometric data or virtually anything else, even if you know full well that doing so will incriminate you.

Tell that to all the murderers who have failed to disclose where they have disposed of bodies, weapons, and other bits of evidence. They did not provide access whatsoever to that information. But I am sure they just didn't get the memo, and it's not that you're misinterpreting the 5th amendment. You absolutely do not have to help build the case against yourself. They're allowed to take physical evidence like blood, breath, and DNA because you do not have to be actively involved in that. You certainly aren't going to stop breathing just so you can't be subjected to a breathalyzer. In this case, you would be actively providing evidence in your incrimination. If this case is so high priority, they can find a way to break the encryption. Consider it like a safe. They can't force you to provide the combination. If they want into the safe, they will hire someone to help them do so. If they're unable to find someone capable of physically opening that safe then they're just out of luck.

Re:As much as I can't stand

[c]

A search warrant cannot compel you to testify against yourself, but it absolutely can, and very often does, compel you to give police access to locations, items or data that can incriminate you. ...

The key difference from a password is that in all those examples you provided, the things that you could be compelled to provide are also things which, if it came down to it, someone could just go and take without your cooperation. It might be messy, expensive and slower, but it's entirely feasible,

In the case of passwords, "feasible" is less clear. Theoretically any security can be cracked, but is that on the same level as cracking a safe when the owner refuses to give up the combination?

Devils advocate

[Dorianny]

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

That's going to be appealed

[chromaexcursion]

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.

I fear they are right.

[rickb928]

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.

Re:I fear they are right.

[networkBoy]

They're welcome to saw my phone in half to get at the files on the flash chip too :)

I get the point you're making about discovery, but this *still* violates being a witness against yourself. In discovery the police/DA can't put a piece of paper and a pen in front of you and require you write a confession, even if you were caught red handed.

Re:I fear they are right.

[nightfire-unique]

All Americans have the legal right to remain silent at all times, and guilt can never be inferred based on the execution of that right.

Honestly, that's all that needs to be said here.

The constitution is razor sharp on this issue. You cannot ever be compelled to say anything in your defense, whether it's a password, a location, a date, an apology, the number of languages you speak, or your favorite color.

Any ruling that a defendant must "speak up" to prove their innocence is unconstitutional.

Re:I fear they are right.

[fustakrakich]

It already was abused when demanding the owners reveal their passwords, pins, whatever. That is abuse.

Re:I fear they are right.

[mrchaotica]

Let's make this absolutely fucking crystal clear: the prosecution has every single bit of data from those phones in its possession. What they're demanding is that the defendants help them interpret it, and that's what violates the defendants' rights.

Re:I fear they are right.

[Anonymous Coward]

Abuse #1: Judge can hold you in contempt, in jail, essentially forever, for honestly forgetting phone password
Abuse #2: Cops replace your phone with different phone of same model. Use (very likely) different pin. Now, even if you recall the pin, you cannot unlock the phone. In jail for contempt indefinitely.
Abuse #3: Judge believes the phone is yours. You state it isn't. Court compels you to unlock the phone because "clearly" it must be yours. You cannot/do not. Jail.

There are clearly more ways this can be abused. This should be sufficient. You should never be required to divulge the contents of your mind because there is no way to verify if you are lying, or don't have it, or cannot remember it. Thus, in cases such as this, the punishment happens even if you're innocent.

Re:I fear they are right.

[MightyYar]

What if you wrote your diary in a code that only you knew? Could they compel you to translate it?

Re:I fear they are right.

[Hognoxious]

The 5th was written to prevent what the Judge ruled in this case.

No it wasn't. It was to 1) exclude testimony obtained by torture and 20 to prevent prosecutors tagging on a perjury charge if you said you didn't do it but were found guilty.

Suggestion: Duress Passcode

[mysidia]

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.".

Re:Suggestion: Duress Passcode

[Anonymous Coward]

No, not duress passcodes, duress fingerprints. A passcode requires action on your part. Either you are typing it in or you told someone else what to type in. That definitely qualifies as destruction of evidence. But a fingerprint, all you have to do is nothing. Let the other party forcibly select a finger and swipe it on the sensor. You are under no obligation to speak up and say "oh btw, you don't want to use that finger that you selected".

Re:Suggestion: Duress Passcode

[swillden]

That's called obstruction of justice and tampering with evidence.

What evidence? We're assuming there is evidence to be found on the device already? We only have suspicion and the power to compel a person to action against themselves by revealing knowledge stored in their heads.

We're assuming there is enough evidence that there is evidence on the device to constitute probable cause for issuing a warrant. And, yes, in that case use of a duress password to wipe the device would constitute destruction of evidence. If the police arrive at your house with a search warrant and you set the house on fire to prevent it from being searched, that's obstruction and destruction of evidence.

Of course, if obstruction and destruction of evidence are lesser crimes that what you committed and know will be proven, you would be wise to commit those lesser crimes to protect yourself against conviction for the greater.

Re:compelling... story

[zlives]

might as well compel a confession and be done with it faster.

A simple litmus test

[Sydin]

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.

Re:A simple litmus test

[The Rizz]

the judge equates the password or pin code to a safe combination and using prior supreme court precedent that defendants have no 5th amendment protection in a combination are then compelled to divulge the combination/password/pin.

Completely untrue in just about every way.

The Supreme Court actually has never directly ruled on such a case, but have used lock combinations as an example case in other rulings. In those rulings, they have consistently implied that one would not have to divulge the combination. As stated in the Supreme Court ruling, “the expression of the contents of an individual’s mind is testimonial communication for purposes of the Fifth Amendment."

More info here: http://blogs.denverpost.com/cr...

Re:Aaand

[ShanghaiBill]

Right. A case about two idiots blackmailing a woman with nudes is the thing that would upset the founding fathers.

"The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all." -- H. L. Mencken

The mass surveillance over the US population conducted by the federal government over the last decade was a-ok ...

You are implying that supporters of human rights are hypocrites. I don't think so. Those of us objecting to this violation of 5th are the same people that objected to the mass surveillance.

It's a big red herring

[Patent Lover]

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?

Re:Bullshit

[ShanghaiBill]

What're they gonna do - torture them for the info?

No, but they can be held in jail indefinitely for refusing to obey the judge's order.

Re:3rd way

[Tawnos]

The legal system starts from a state of presuming the innocence of the accused. A person on trial for a criminal offense has no expectation that they must "prove [their] innocence"; it is the job of the state to prove the accused is guilty of the charges.

In other words, it's not the password itself that is problematic. The issue lies in compelling someone to provide information that, effectively, causes the person to make testimony (whether for or against themselves, it does not matter).

Re:compelling... story

[msauve]

Short summary: "You have the right to remain silent."

Re:compelling... story

[MightyMartian]

I think this case would be a very poor test of Fifth Amendment protections, seeing as the defendants already outed themselves with their extortion attempt, and the evidence the prosecution have (mainly what the blackmailers communicated to the victim) pretty much guarantees that some or all of their electronic devices have incriminating files on them. This isn't a case of a fishing expedition, the prosecution knows where the fish is, it just doesn't have a hook to catch them with.

And if the passwords are handed over,

[jenningsthecat]

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.

Re:Aaand

[amiga3D]

The entire question hinges on whether or not surrendering your phone's contents is self incrimination. If they want to search your house you can't stop them. They can read your journal. Essentially they're saying the contents of your phone is like a filing cabinet they can go through. I tend to agree with you but I can see where they're coming from.

Blame 50 years of drug war

[swb]

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.

Re:Bullshit

[Anonymous Coward]

Examples of free health care I have seen in an American prison include a man who complained of blood coming from his rectum and was told not to worry. Hours later his stomach aneurysm ruptured. He was allowed to walk to the med unit where they left him on the floor in a dark room bleeding without even telling him that help was on the way. About 30 minutes later he was loaded into the ambulance. By the time he reached the hospital he required 4 units of whole blood immediately with more during the emergency surgery.

A dentist at the same prison routinely removed teeth by giving a local, using a hammer and chisel to bust the tooth to pieces, and mostly pulling those out. Many had to have follow-up for broken jaws or infections from the pieces of teeth left in their jaws.

That particular prison bragged publicly about having reduced the cost of their health care by over 30% during the first decade of this century while health care costs were exploding everywhere else. They went so far as to explain that it was done by a joint effort between the health care staff and the prison officials to reduce medical complaints. I routinely witnessed the heavy-handed discouragement used.

That is healthcare in American prisons. I wish it on anyone who complains of its costs.

Re:compelling... story

[xvan]

If they have all the evidence why would they need more evidence?

Re:Aaand

[Dragonslicer]

What phones really need is a delete combo so that you can give them a number that wipes out key areas but unlocks the phone.

Destruction of evidence carries pretty substantial punishment. If I remember correctly, the prosecutor would also be allowed to draw the conclusion that is the worst for the person who caused the destruction.

Easy

[Brannon]

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.

Re:Easy

[The Rizz]

Except if a Judge decides he doesn't give a fuck, it doesn't matter how good your lawyer is.

An exact parallel to this case Has already happened, and it took 14 years for the guy to get out of jail. What kind of horrible crime must he have committed to be jailed for that long without a trail or conviction? It wasn't even a criminal case, but a divorce case! The wife said he hid $2.5 million overseas. He said he didn't and actually had lost the money in a bad investment. Judge didn't believe him, and put him in contempt of court. The guy was even a top notch attorney himself, so it's not like he wouldn't have had good representation. Simply put, the judge got pissed that he claimed something that was unprovable and that the judge didn't beleive, and put him in a hole to rot until he agreed to provide evidence against himself that he lied to the court.

Link to details: http://abcnews.go.com/2020/sto...

Re:Easy

[The Rizz]

Except if a Judge decides he doesn't give a fuck,

Then that sucks. In the case you linked to though, it seems there was good reason for him to be in contempt:

The problem is that it doesn't matter what it looks like. You're not supposed to ever be jailed without a trail, and especially without any possibility for a trail, nor for a completely arbitrary and indefinite amount of time.

Let that sink in: If the judge believes you're lying, then whether or not you are, you can be jailed effectively forever, completely without a trial. The only way to even get a trial is to admit you committed perjury - that is about as clear a case of coerced self-incrimination as I can think of, and precisely what the 5th Amendment is supposed to protect you from. And, if you are actually telling the truth, it is impossible for you to ever prove it, as you will never get a trial at which to do so.

Re:Aaand

[amiga3D]

That's no different from them planting evidence in your house or car. The prosecutor and police get the benefit of the doubt in court from the start.

It's also dangerous

[Sycraft-fu]

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.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:Hoof Arted

[silentcoder]

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.

Re:Aaand

[silentcoder]

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 ?

Re:Hoof Arted

[silentcoder]

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.

Re:Hoof Arted

[goose-incarnated]

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.

Re: Hoof Arted

[Anonymous Coward]

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.

Re:Hoof Arted

[Corwyn_123]

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.

Re:Aaand

[silentcoder]

And then the judge would be quite happy to help you refresh your memory with a few days off work for some much needed R&R at a resort of his choosing at taxpayers expense by means of a contempt of court finding.

Re:Hoof Arted

[plague911]

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.

Re:Hoof Arted

[buss_error]

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.