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

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

[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.

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: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.

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.