Man Sentenced To 180 Days In Jail For Refusing To Give Police His iPhone Passcode (miamiherald.com)

schwit1 quotes a report from Miami Herald: A Hollywood man must serve 180 days in jail for refusing to give up his iPhone password to police, a Broward judge ruled Tuesday -- the latest salvo in intensifying legal battles over law-enforcement access to smartphones. Christopher Wheeler, 41, was taken into custody in a Broward Circuit Court, insisting he had already provided the pass code to police investigating him for child abuse, although the number did not work. "I swear, under oath, I've given them the password," a distraught Wheeler, his hands handcuffed behind his back, told Circuit Judge Michael Rothschild, who earlier in May found the man guilty of contempt of court. As Wheeler was jailed Tuesday, the same issue was unfolding in Miami-Dade for a man accused of extorting a social-media celebrity over stolen sex videos. That man, Wesley Victor, and his girlfriend had been ordered by a judge to produce a passcode to phones suspected of containing text messages showing their collusion in an extortion plot. Victor claimed he didn't remember the number. He prevailed. On Tuesday, Miami-Dade Circuit Judge Charles Johnson ruled that there was no way to prove that Victor actually remembered his passcode, more than 10 months after his initial arrest. Johnson declined to hold the man in contempt of court. Wheeler will eventually be allowed to post bond pending an appeal. If he gives up a working pass code, he'll be allowed out of jail, Judge Rothschild told him.

Comments

Confusing

[Anonymous Coward]

The snippet above doesn't make clear that the article discussed two different cases. In one case, the guy got 180 days. In the other case, the court let the guy off because the police couldn't prove that he remembered the code 10 months later.

Re:Confusing

[sabri]

These judges should go back to law school and read about the 5th, and why it exists. It's not just about the right to remain silent. It is about the absolute right of a suspect in a criminal case to refrain from any actions which would help the prosecution to convict. A modern day criminal trial is already very uneven with the prosecutor having massive amounts of resources, where a suspect has very limited resources.

These "judges" are criminals themselves and should be thrown in jail for violating this man's human rights.

History will judge these fools the same way as the inquisitors who tortured heretics to extract a confession. This is basically the same. Putting an innocent man (until proven guilty) in jail because he refuses to cooperate with the inquisition. And of course they create a precedent like this with a case involving children, so the public backlash would be limited. Where are alt-right patriots when you need them?

Re: Confusing

[Anonymous Coward]

So how do you account for the fact that, in the protections against unreasonable search and seizure enshrined in the 4th amendment, the authors of the Constitution had no concept of an unbreakable lock? The 4th provides a mechanism to balance privacy rights with the government's obligation to enforce law and prosecute based on evidence procured through a probable cause based search. At that time, it was understood that no lock or container, no matter how stout, could not be defeated to execute a warranted search. Today, though, encryption technology has created personal, unbreakable locks in virtually everyone's possession. Law enforcement still has the same obligation to search these devices if there is probably cause to believe they contain evidence of a crime, but they can't break the lock. A court order to provide the passcode is not a violation of the 5th, because providing a key to your unbreakable lock is not an admission or statement of guilt. It is merely providing the key to your unbreakable lock that the 4th amendment allows the government to search based on probable cause.

Re:Confusing

[Archfeld]

The 5th amendment gives you the right to not testify and provide proof of your own guilt through direct testimony. It doesn't give you the right to hide evidence. A more apt metaphor might be refusing to provide access to a safety deposit box, or open a home safe. Both of those can be physically forced with the right tools and a court order. If you are foolish enough to keep copious notes proving your own guilt and the prosecution can prove their existence or acquire them that is not a 5th amendment issue, but one of general stupidity. Load an app on your phone that will wipe the thing if a certain passcode is entered.

Re: Confusing

[Sparowl]

The issue then becomes, what do you do when you actually do not remember the passcode?

How do I prove my innocence in "refusing" to provide the code?

The issue now becomes an unattainable burden of proof on the defendant, who is supposed to be innocent until proven guilty, no?

Re: Confusing

[shitzu]

As we know from the San Bernardino case, it is not an "unbreakable lock". The government just finds it cheaper to throw a man in jail than pay someone to open the iphone.

Re: Confusing

[hawguy]

So how do you account for the fact that, in the protections against unreasonable search and seizure enshrined in the 4th amendment, the authors of the Constitution had no concept of an unbreakable lock? The 4th provides a mechanism to balance privacy rights with the government's obligation to enforce law and prosecute based on evidence procured through a probable cause based search. At that time, it was understood that no lock or container, no matter how stout, could not be defeated to execute a warranted search. Today, though, encryption technology has created personal, unbreakable locks in virtually everyone's possession. Law enforcement still has the same obligation to search these devices if there is probably cause to believe they contain evidence of a crime, but they can't break the lock. A court order to provide the passcode is not a violation of the 5th, because providing a key to your unbreakable lock is not an admission or statement of guilt. It is merely providing the key to your unbreakable lock that the 4th amendment allows the government to search based on probable cause.

How is it any different than a defendant refusing to reveal where he hid the tools of his crime? The police suspect that he killed Colonel Mustard in the LIbrary with a lead pipe, but without the pipe, they are unable to prove it. The police could spend millions of dollars combing through many square miles of land looking for the weapon (just like they could spend millions of dollars trying to hack into the device), but can they compel the defendant to reveal exactly where he buried it, even if the defendant claims he forgot?

If the cell phone owner was separated from his phone for any length of time, I can believe that he forgot the code - when I lost my tablet for a month and I got it back again, I couldn't remember my passphrase and had to wipe it and reset it.

Re: Confusing

[Anonymous Coward]

So how do you account for the fact that, in the protections against unreasonable search and seizure enshrined in the 4th amendment, the authors of the Constitution had no concept of an unbreakable lock?

The authors of the Constitution had a very good understanding of codes and ciphers. The ideas go back to roman times if not earlier. Codes and ciphers are at issue here not locks. The question is if the authors would consider being forced to decode a message to be self incriminating or not. I think they would not as knowledge of a code implies strong evidence that there was prior knowledge of the information encoded in the first place - that is self incrimination. One if by land, two if by sea and all that.

Re: Confusing

[j-turkey]

How is it any different than a defendant refusing to reveal where he hid the tools of his crime? The police suspect that he killed Colonel Mustard in the LIbrary with a lead pipe, but without the pipe, they are unable to prove it. The police could spend millions of dollars combing through many square miles of land looking for the weapon (just like they could spend millions of dollars trying to hack into the device), but can they compel the defendant to reveal exactly where he buried it, even if the defendant claims he forgot?

I'm not a lawyer, but in my opinion it isn't any different. My understanding of the fifth amendment is that for police absolutely cannot compel a suspect to reveal the location of a murder weapon (or incriminate themselves in any way). If investigators can demonstrate probable cause, they can obtain a search warrant to locate said weapon (and other things can be compelled, such as DNA or fingerprints). However, compelling a suspect (who is innocent until proven guilty) to reveal the location of a murder weapon would be a textbook case of self-incrimination, and a violation of the 5th Amendment to the Constitution.

Re:Confusing

[spire3661]

Its as simple as this. The court cannot make a judgement on the contents of your brain. If you say you forgot your passcode, by the 5th Amendment, the court is absolutely bound to accept that as the end of it. They dont have to believe you, it doesnt matter, the law forbids them from punishing you for it. The express intent of the 5th is to prevent the court from pretending to be mind readers and then acting on it.

Re: Confusing

[Anonymous Coward]

So how do you account for the fact that, in the protections against unreasonable search and seizure enshrined in the 4th amendment, the authors of the Constitution had no concept of an unbreakable lock?

By pointing out the fact that that is a bald-faced lie? Secret codes (aka, unbreakable "locks") have existed for as long as humans have been communicating.

Re: Confusing

[orlanz]

Well said. There are many cases that we just can't solve due to the restrictions of the system. The founding fathers knew this. And it is a small price to pay to have a just and fair system of justice.

Re:Confusing

[larkost]

A better analogy would be being put in jail for not providing the location of a safety deposit box that contains proof of your guilt. Assuming that the prosecutor has proof that such a thing exists, but not the location, do you think it alright under the 5th amendment for the government to punish you for not providing the location?

Re: Confusing

[rickb928]

I've heard this discussed a multitude of ways, and one that worries me concerns the difference between discovery and production. And tampering/destroying evidence.

One theory is that refusing to give a passcode/password/key is the equivalent of refusing to produce, pursuant to a warrant or subpoena, but the 5th should still apply. The authorities can come get your phone, as they could come take a safe from your home or office, but are you required to open that container?

On the other hand, if you've forgotten how to open the safe, or phone, how do they prove you are in fact able? I've got a few passwords I know, but to tell you them I have to think through typing them. I could forget them, or more accurately be unable to remember them, under stress. Maybe.

And God forbid I have an accomplice that, for an iPhone, would enter iCloud and change credentials, perhaps making it really really hard for me to access my phone and data. What if they wiped my phone remotely, and could not be found? I'm in jail throughout all this, how could I be held to account if they could not prove a conspiracy?

The 5th Amendment is being wiped away. Not good.

Re:Confusing

[rickb928]

More to the point, imagine you have a floor safe in your home, it is found during a lawful search, can you refuse to open it?

And if the authorities do force it open, and that triggers the destruction of the contents, are you guilty of destroying evidence? OR something else?

Re: Confusing

[WhiplashII]

Let me simplify this for you:

NEVER TALK TO THE POLICE

Don't tell them it is your phone, don't say you know the password, etc. Ask for your lawyer.

Re:Confusing

[Hrrrg]

Gizmodo actually posted a much more informative story than slashdot. The 5th amendment issue is summarized thus:

http://gizmodo.com/can-we-plea...

"Legally speaking, phone unlocking is a very challenging question—that’s the problem. On the one hand, American citizens can’t be forced to testify against themselves according to the Fifth Amendment. This is the reasoning many defense attorneys use when prosecutors try to force suspects to unlock their iPhones. On the other hand, police and prosecutors are allowed to obtain evidence with a warrant from a judge. A suspect who refuses to supply a passcode—or who say they can’t remember it, as in this week’s Florida cases—could be held in contempt of court.

According to actual legal experts, the phone-unlocking debate is so challenging because the Fifth Amendment defense depends on whether or not the suspect is actually testifying by giving up a passcode or fingerprint. As Orin Kerr, a law professor at George Washington University, explains in The Washington Post, supplying the key to unlock it under a judge’s authority probably shouldn’t count as testimony, if the suspect has admitted that a certain device belongs to them. After all, the very act of supplying a key doesn’t add any new facts to the case. If it’s unclear who owns the locked device, however, things get dicier. Admitting to owning a phone that’s believed to contain incriminating evidence is testimony, because you’re adding new information to the case."

Re: Confusing

[Anonymous Coward]

If you forget to pay your taxes for 5 years you aren't jailed indefinitely for contempt.

Re:Confusing

[dunkindave]

OK, Let's deconstruct your statement.

The 5th amendment gives you the right to not testify and provide proof of your own guilt through direct testimony.

The Fifth Amendment gives you the right not to be compelled to testify against yourself, or to quote it, for one "to be a witness against himself". Note the wording. You can be compelled to testify, just not as a witness against yourself. What is well established in precedent is this means you cannot be forced to provide testimony that would prove your guilt, but you can be forced to testify about facts not in dispute, like the combination to the safe in your home that people have seen you open, or the passcode to your phone. That isn't deemed to be testifying against oneself.

The issue here though is the person claims he gave the passcode but the police say it doesn't work, so is he lying, or isn't he? The Court thinks he is lying, which is a separate crime, so he gets to spend some quality time in the care of the state.

It doesn't give you the right to hide evidence.

There is no legal right to hide evidence, but unless the state can prove you know where the evidence is, there is no legal right to compel you to disclose its location. It is extremely hard to prove what someone knows, versus what you think they probably know, so this becomes a very hard bar to overcome for the state.

A more apt metaphor might be refusing to provide access to a safety deposit box, or open a home safe. Both of those can be physically forced with the right tools and a court order.

The analogy is flawed but comes close to the problem being faced by the legal system. That problem being in the physical world the safe can be forced open, but such ability may not exist for a cryptographically protected "vault". The legal system is still trying to figure out how to deal with this issue without unduly prejudicing the defendant. Remember, in the legal system rights are weighted against each other, and the state (i.e. the embodiment of the people) has rights too, so it becomes a test of which right outweighs the other.

Load an app on your phone that will wipe the thing if a certain passcode is entered.

That would be obstruction of justice and/or destruction of evidence, so then it becomes which is worse, the penalties for destruction, or the penalties for the crime being investigated.

Re: Confusing

[ewanm89]

Yes Mr officer, I would love to help you but that document is just results of a random number generator in base64 that I was using to run a Monte Carlo simulation by hand.

Re: Confusing

[Anonymous Coward]

The difference between the two being that US Federal and State governments are supposed to be bound by Constitutional rights. That said, coercing someone to confess to a crime actually IS a violation of their human rights. You might work on bringing your government up to speed on that. We did, once, and apparently need to again.

Re:Confusing

[Imrik]

If the prosecutor can prove that a safety box exists that contains proof of your guilt, they can prove you are guilty without the contents and thus do not need them.

Re: Confusing

[Anonymous Coward]

"the authors of the Constitution had no concept of an unbreakable lock?"

Huh? Military ciphers have been around for at least 4.5 centuries, if not more, and hundreds of years before the Constitution was ever drafted. Many were unbreakable with respect to the technological means of the time.

The authors and singers of the Constitution, many of them military and statesmen from the time of the Revolution, likely were well appraised about secret and hidden codes and had such papers and means in mind.

Remember, the 4th and 5th are part of the Bill of Rights, which originally wasn't expected to be codified but understand by English common law at the time.

I suspect the Framers would take issue if a person was forced to give up their codes esp if that led to successful prosecution by the government.

Re:Confusing

[Galactic Dominator]

It does however apply to thought crime.

Re: Confusing

[Anonymous Coward]

Bullshit. Jefferson and Adams used cyphers to communicate all the time. Those papers could be taken at any time but they could not be compelled to give up the keys if the only place they existed was in their heads.

Re:Confusing

[DivineKnight]

Look, it makes for an easier prosecution if people believe they have rights that they do not, in fact, have.

Re: Confusing

[Aighearach]

The difference is, in your hypothetical they haven't proven that he's guilty, so they can't prove he knows where the murder weapon is. That is why they're demanding testimony.

In the case of a lock, they've already proven that you owned the lock. For example, if they searched your house and confiscated a locked safe, they can prove to a satisfactory degree that you owned the safe, and it is reasonable to presume that a person knows how to open their own safe. So there is nothing testimonial about admitting you know how to open the safe.

The protection from self incrimination isn't about protecting criminals from the mean police, it is because in the past before we had that protection that prosecutors would use circular logic where they would prove some minor fact connected to the case, and use that to claim you must know what happened, and then accuse you of lying if your story doesn't match theirs. You either admit to the crime and are guilty, or you deny it (lie) and are guilty. They didn't have any means to stop that behavior other than simply banning them from requiring that you testify. It is important to keep that in mind when looking at the topic, because that context is not lost on the Court when they consider the finer details of the protection. And that is why, when it comes to things like the far edge of what is and isn't a "key" they're not going to be very sympathetic with the accused, but if it isn't a key, then they're not going to be very sympathetic with the prosecutor either.

It isn't a right that they wanted to have to give out, it isn't a right that we would need in a perfect world, and it isn't a right that the Court is going to want to expand. And if technology makes the right less useful, the Court will likely view that as a positive thing.

Re:Confusing

[Actually, I do RTFA]

I'd imagine there are cases where you can prove the existence of the box, but not the underlying crime. For instance, suppose they found a key to a safe deposit box (in an unknown location) with a trace amount of cocaine on it. That would be evidence of a safety deposit box that had drugs in it. But, by itself, would only be prosecutable for the trace amount. Which could be a different crime, based on the quantity.

Re: Confusing

[AutodidactLabrat]

And this is why we need new encryption
The kind where you give them the wrong code, the phone explodes
Ooops
Sorry, no evidence of any crime
Or better yet, immediately plants trojan in the Cop Computer that steals the cop passwords to private slush fund files

Re:Confusing

[Aighearach]

Your concept of Absolute Proof isn't used by any court at any level for any decision.

And when it comes to your statement about the contents of your brain, the Judge will have to decide to the standard of proof appropriate for the exact stage and nature of the inquiry.

The "express intent" of the 5th Amendment is not as you wildly claim. The fifth Amendment states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Nothing in there about mind readers. Only about being compelled to be a witness against yourself. And it isn't because of the low quality of mind-readers of the day, but rather the specific forms of prosecutorial misconduct that were prevalent in Colonial times. Same with those others things; they weren't worried about being twice put in jeopardy for the same offense out of abundance of caution, but rather because that was one of the many abuses that they had just fought a war of independence over, and it rated highly enough to get listed.

Re: Confusing

[Anonymous Coward]

That sounds like a bad plan. Some folks are armed on a nearly continuous basis, even at home; compact sidearms are lovely accessories for every occasion. Some of those folks also work from home, which would make it rather difficult for an intruder to avoid trouble most of the time. Last but certainly not least, some such people also reside in states where the only thing law enforcement is going to be concerned with after the fact is sending some guys over to scoop up an intruder's corpse. All in all, good luck, champ. -PCP

Re:Confusing

[Sark666]

I'm actually surprised that 'I don't remember' worked. Say they look at phone records with the company and see a call made earlier on the day of the arrest. So you remembered your password at 10:38 am, 11:14 am, 12:22 pm, and 2:48 pm, but at 4 pm you don't remember?

Re: Confusing

[gl4ss]

how is it different to provide a passcode vs. to provide the information in your head about your crime?

it allows government to search but in no way does it say that you have to tell them where you put the key and which individuals you confessed your crime to.

look, in some countries you're supposed to actually testify against yourself and provide help and not remain silent..

now the dude is doing 180 days for something they supposedly cannot prove? if they didn't have enough proof already how do they have the proof to necessiate the search?

Re: Confusing

[TapeCutter]

Why do they need the phone to read the text messages he sent? Why can't they just get a warrant to pull his logs from the phone company?

Re: Confusing

[Solandri]

How is it any different than a defendant refusing to reveal where he hid the tools of his crime? The police suspect that he killed Colonel Mustard in the LIbrary with a lead pipe, but without the pipe, they are unable to prove it.

The difference comes up when the police know that evidence is contained within the suspect's property. If the police don't know where the pipe is, they can't do anything. But if they know or strongly suspect (with corroborating evidence) the pipe is in the suspect's house, they can get a warrant to bypass the 4th Amendment ad search his house.

Likewise, if they know (or strongly suspect with corroborating evidence) that the whereabouts of the pipe are contained within the suspect's phone and can convince a judge of it, the judge can compel the suspect to give the prosecution access to the phone. If the suspect refuses, he is in contempt of court, just as he would be if he refused to allow police to search his house despite being presented with a warrant.

However, if the police are merely on a fishing expedition to see what a search of the phone will turn up, the suspect cannot be compelled to give access to his phone.

Re:Confusing

[rtb61]

The article was, clear, he claimed to have provided a passcode but that passcode did not work, whose fault, the people who held the device broke it trying to hack it, Apple's code failed for some reason, Apples hardware failed for some reason, or he lied, if you can not prove which is true, by law, reasonable doubt exists. Where under law, is a consumer required to warrant the functioning of a device they bought, to the point of criminal prosecution, when the manufacturer does not and writes some of the crappiest warranties legally possible.

The court is demanding that a consumer warrant a phone with loss of freedom for 180 days if that phone does not work as advertised. Note he has provided the evidence the phone, it is up to others to make use of it, done and finished.

Re: Confusing

[shitzu]

My point was that NO system is unbreakable. Its just the matter of price. In San Bernardino case government also argued with Apple that it is impossible to decrypt - until it suddenly wasn't. I guess someone decided that court case with Apple would be less cost effective.

Re: Confusing

[shitzu]

It is in the article. They asked for the code 10 months later.

Re: Confusing

[slashdot_commentator]

Today, though, encryption technology has created personal, unbreakable locks in virtually everyone's possession.

No, they are breakable. We just don't know how many months or decades will pass before they become breakable.

Law enforcement still has the same obligation to search these devices if there is probably cause to believe they contain evidence of a crime

Law enforcement has no legal concept enshrined which requires it to violate the CotUS in order to pursue the possibility of crime. In fact, if the only way they can prove a crime is committed is to use information obtained by violating the self-incrimination, that is basically grounds to dismiss a case.

A court order to provide the passcode is not a violation of the 5th, because providing a key to your unbreakable lock is not an admission or statement of guilt.

Bullshit. That's just you making up crap to support coerced, self-incriminating investigations. The bottom line, if you believe technology has changed legal conditions to the point that it becomes impossible to conduct prosecutions due to a technologically invulnerable source, pass a Constitutional amendment delineating when such a search can be legally applied. Don't try to let court precedent create law.

Re:Confusing

[The Rizz]

Say they look at phone records with the company and see a call made earlier on the day of the arrest. So you remembered your password at 10:38 am, 11:14 am, 12:22 pm, and 2:48 pm, but at 4 pm you don't remember?

"Hey Siri, call Bob at the office."

Do you actually need to unlock your phone for it to function as a phone? I can dial strait from the voice recognition without unlocking on mine.

Re:Confusing

[gnasher719]

These judges should go back to law school and read about the 5th, and why it exists.

And you should go to law school in the first place. Giving up a password is not testifying against yourself. The password is not evidence. The password is a means to access evidence that you have no right to hide.

(There is a tiny minority of cases where giving the password _would_ be testifying yourself; that is in cases where it is not sure that you are the owner of the device and giving the password clearly proves that you are. )

Re: Confusing

[mean pun]

My point was that NO system is unbreakable. Its just the matter of price.

... except that there are unbreakable systems. Or at least systems that at the moment are unbreakable. A properly generated and used one-time pad is a trivial example.

Re: Confusing

[gnasher719]

As we know from the San Bernardino case, it is not an "unbreakable lock". The government just finds it cheaper to throw a man in jail than pay someone to open the iphone.

An old iPhone 5c with a four digit passcode apparently doesn't have an "unbreakable lock". Newer iPhones can't be cracked that way, and a ten digit passcode can absolutely not be cracked in your life time.

Re: Confusing

[gnasher719]

And this is why we need new encryption
The kind where you give them the wrong code, the phone explodes
Ooops
Sorry, no evidence of any crime

Don't try it. It's destruction of evidence, a crime in itself. And judge and jury will draw conclusions from the fact that you destroyed the evidence. It's beyond reasonable doubt that the evidence was there and you destroyed it.

Re:Confusing

[gnasher719]

Its as simple as this. The court cannot make a judgement on the contents of your brain. If you say you forgot your passcode, by the 5th Amendment, the court is absolutely bound to accept that as the end of it. They dont have to believe you, it doesnt matter, the law forbids them from punishing you for it. The express intent of the 5th is to prevent the court from pretending to be mind readers and then acting on it.

There is one obvious fault with your argument: Reality doesn't agree with it. One guy was convicted. Obviously your credentials as slashdot reader and general "bloke on the internet" make it obvious that your knowledge of law is better than that of the judge. Or maybe it doesn't? And I mean seriously, you are saying that a court is absolutely bound to believe whatever you say? That's nonsense.

Re: Confusing

[shitzu]

Well, yeah. Unbreakable for me and you.
But give someone enough time and money and they aren't. Some government agency with enough funds and talent (and motivation). If history has taught us anything - all encryption systems will be broken in due time.

Re: Confusing

[shitzu]

Well, it might come as a surprise to you, but in real world breaking an encryption does not work by guessing the pin on the third try like in movies. It does not matter if there are 10 digits or 76. Someone will find a way around it given money and time.

Re:Confusing

[thegarbz]

A modern day criminal trial is already very uneven with the prosecutor having massive amounts of resources, where a suspect has very limited resources.

Good.

History will judge these fools the same way as the inquisitors who tortured heretics to extract a confession.

There's a reason why torture isn't permitted and it has nothing to with the reason why the 5th is somewhat silly in this regard. Torture leads to admission of guilt for the purposes of avoiding torture. It has nothing to do with the guilt itself. Handing over data on the other hand is little more than evidence. Data doesn't crack under pressure and as long as it isn't used for a fishing expedition not related to the case at hand there's no reason files on your phone are any different to letters in your drawer which could be subject to a warrant.

Re:Confusing

[dwillden]

As this is an area of case law that needs to go before the Supreme Court, the fact that one judge found guilt does not prove anything. The fact that another judge decided he could not detain someone just further validates the fact that short of Congress writing more clear laws, this will require a decision by the Supreme court as to how this will play out.

Re:Confusing

[dwillden]

Then let the police physically force the phone. If the 'Key' exists only in my mind then I can't be compelled to give it up if I feel it might result in incriminating my self. And refusal to give it up cannot be considered incriminating either.

It most definitely is a 5th Amendment issue. It requires compelling me to reveal something that only exists in my mind. The Key analogy only goes so far, and in this situation it fails.

Re: Confusing

[dwillden]

DNA and fingerprints can also be collected without their willing participation. A password cannot. Big difference. Unless you wear gloves you will leave fingerprints. And you will leave DNA wherever you go. Give investigators enough time and they will collect samples verified to belong to you. Thus allowing a warrant to compel collection of Fingerprints and or DNA just saves time for all parties involved.

How do they collect something only you know?

Re:Confusing

[houghi]

These amandments I hear so much about: I think I am going to print them out as they have much more vallue as wall decoration.

Re: Confusing

[Bob the Super Hamste]

Except one time pads which are mathematically proven to be secure. The best that one could hope to do with a one time pad is generate all plain texts but even then you would run out of mass energy of the universe with a message that is shorter than this post up to this point.

Modern cryptography has made some good strides in becoming resistant to attacks as the actual science and mathematics behind crypto were formalized. So while things like AES, Serpent, and Twofish have some some undiscovered weaknesses and will surly get weaker over time you would still likely be looking at energy required to crack it on the order of the total worldwide annual production even on an ideal computer, hint our best computers a several orders of magnitude worse efficiency wise than an ideal computer. On symmetric key encryption even quantum computers don't improve things much given that modern algorithms were created assuming that they would exist. Also if we move beyond using problems based off of prime factorization, discrete logarithms, or elliptical curves quantum computers will fail to provide any benefit there as well.

Re:Confusing

[will_die]

A quick search shows some differences on that and it is kind of up in the air, but the general rule is this. If it is key lock then yes you can be required to provided it, if is a combination only in your mind then you cannot.
For the second question, no idea.

Re: Confusing

[Pi1grim]

> But give someone enough time and money and they aren't. Some government agency with enough funds and talent (and motivation). If history has taught us anything - all encryption systems will be broken in due time.

> If history has taught us anything - all encryption systems will be broken in due time.
Properly generated one-time pads have not been broken and (at least at the moment), so history is a bit blurry on this point.

Someone with infinite time and resources (because having infinite money doesn't make sense) could break the AES-256, except it might take longer than universe-s lifetime.

Re: Confusing

[shitzu]

We are not even talking about encryption as such.
We are talking about a phone which consists of encryption plus hardware plus software that makes use of said encryption. I would bet a fortune that this combination will be broken into sooner rather than later.

Re:Confusing

[mjwx]

History will judge these fools the same way as the inquisitors who tortured heretics to extract a confession. This is basically the same. Putting an innocent man (until proven guilty) in jail because he refuses to cooperate with the inquisition. And of course they create a precedent like this with a case involving children, so the public backlash would be limited. Where are alt-right patriots when you need them?

The so-called "Alt-Right" are in favour of this. Fascism and police states are the love child of authoritarianism the far right. If Trump could take them out of the human rights accords they would welcome it. The irony is, most "Alt-Right" dont realise that they need those rights until its too late.

Now I'd rather not wait for history to judge these fools, first because history works too slowly and secondly because history is written by the victors. If we don't oppose "alt-right" there is a chance they might win and then re-write history to favour the judges, painting them as forward thinking patriots.

The problem with the US is that Americans think that the constitution and bill of rights protects them. They don't, they are just pieces of paper and are only worth the value of the men who protect those rights. If quality people do not stand up for rights, if they meekly accept the violation of said rights because their bellies are full, houses are warm and it doesn't involve them then the result is to be ruled by tyrants and dictators. Freedom, fairness and justice are ideas, ideas that can be easily destroyed if not defended.

Sadly the somnamulant public is too comfortable and too disconnected from the individual this is happening to, to care.

Re:Confusing

[xvan]

That's an stupid digression. I've read the verdict and it makes no sense. If the nature of the key "physical/non physical" matters, then why the nature of the thing being protected doesn't?

The safety box analogy is terrible for both ways of the argument. An encryption password isn't locking anything, the physical support is accessible with a screw driver. For the model to be valid you'd need and "ideal unbreakable safety box", why would you bother to base doctrine on an empty shell when we have concrete stuff like computers.

The real discussion should be around under which circumstances a judge can compel you to provide incriminatory documentation. It's nature is about information itself and not the support of the information.

Re: Confusing

[Alumoi]

Maybe because officially the phone company doesn't store the actual messages?

Re:Confusing

[bill_mcgonigle]

These amandments I hear so much about: I think I am going to print them out as they have much more vallue as wall decoration.

They're most often used for toilet paper these days.

Re: Confusing

[Anonymous Coward]

And it is a small price to pay

It is small as long as you aren't the victim or closely related to the victim of a crime!

Re: Confusing

[EndlessNameless]

If you have some encrypted file on your hard drive that was created a decade ago, you may have reasonably forgotten the password to decrypt that file.

On the other hand, we have people with smartphones---that they used every day for months---who suddenly "forgot" the password/pattern when they were taken into custody. The police are asking them to do something they have literally done hundreds (or even thousands) of times before.

It is almost inconceivable that these people honestly forgot their passwords. Hell, I can usually unlock my phone without even looking at it. And I'm not one of these social media addicts that's going into it every five minutes either.

Re: Confusing

[EndlessNameless]

My point was that NO system is unbreakable.

A system can be unbreakable at this point in time.

It could be so expensive to break a system that it is not worth the cost to do it for every single case.

It is also possible that the system was broken by an intelligence agency who has a vested interest in keeping that brokenness a secret so people will continue to use the system.

I.e., if the CIA or NSA could break into a modern iPhone, they're not going to do it just to bust one criminal---no matter how bad.

If the government breaks in without (a) disclosing their methods and (b) allowing defense experts to review the process, then they probably cannot use that evidence in court. The FBI probably decided they needed to know what was on that phone, even if it means they will not be able to use it as evidence in the future.

Re:Confusing

[spire3661]

You failed as a juror then. Citizens are supposed to judge the law itself as well. The judge will never tell you that, but its true.

Re: Confusing

[xession]

They actually can compel you to reveal the location of the murder weapon used, but first they have to give you immunity to any repercussions that may result in you revealing the location of the murder weapon. Now, this doesn't require that the defendent recall or even have any recent knowledge of where the weapon is. This sort of tactic is used against people facing accessory to a crime to catch the bigger fish in the case, supposing there is one.

Re: Confusing

[Anil]

> the authors of the Constitution had no concept of...

"Locking" information via ciphers, codes, and steganography existed long before the Constitution. I would assume that the autors of the document were aware that these things existed.

Re:Confusing

[xvan]

You can be easily compelled to provide biometry evidence, otherwise DNA couldn't be used as evidence.

Re:Confusing

[xvan]

What about encrypted letters on your drawer?

Re: Confusing

[xvan]

How do they collect something only you know?

With a 5 dollar wrench. You can argue that there is no difference between that and forced DNA extraction as you can't guarantee that without it investigators will be able to collect DNA samples.

Re: Confusing

[david_thornley]

The difference is that I don't have to help the police find a pipe. They can get permission to tear my place apart, but not to compel me to tell them where to look. The comparable thing would be requiring me to hand my phone over to the police. Instead, the defendant is ordered to divulge information, and that's arguably being a witness against himself in a criminal case. It's clear that a suspect can be compelled to hand over a safe key, but whether a suspect can be compelled to hand over a safe combination is, I believe, a lot iffier.

Re: Confusing

[david_thornley]

You can set up an iPhone 5S or later to allow ten tries at the passcode before it wipes the AES-256 key and renders the contents of the phone completely unreadable. You can't do it fast, since there's lockouts of increasing length.

Having that set is not violating the law.

Re:Confusing

[david_thornley]

The person in question was not convicted, but rather found in contempt of court. That the judge has a much better grasp of the law doesn't mean the judge can't make mistakes. That's the whole reason we have appellate courts.

Re:Confusing

[chihowa]

As the other reply pointed out, this is only true if the card bears the name of somebody that isn't you. The law also doesn't let the policeman "assume you intended to use it for illegal purposes". It's a strict liability law (which is part of a fucked-up, but increasingly common trend with laws), which doesn't require any criminal intent at all to prosecute. There's no mind reading involved at all; if you possess the card, you're violating the law.

Re:Confusing

[david_thornley]

AFAIK, that hasn't been settled in US jurisprudence.

Re: Confusing

[SuiteSisterMary]

There are three ways that a one-time pad can be broken.

1: You're stupid enough to reuse a sequence from the pad.
2: The pad is compromised
3: The pad is improperly generated - which is to say, is not properly random.

A properly done OTP cannot be broken, because it's not algorithmic.

Re: Confusing

[fuzznutz]

In the case of a lock, they've already proven that you owned the lock. For example, if they searched your house and confiscated a locked safe, they can prove to a satisfactory degree that you owned the safe, and it is reasonable to presume that a person knows how to open their own safe. So there is nothing testimonial about admitting you know how to open the safe.

Really? I have Master locks all over the house that I can't open. When I need one for something, I go out and buy a new one hoping I will some day find that little slips of paper that lets me open an old one. They pile up in drawers. I have a lock on one of my fence gates. It was there when I bought the house. I have no key. My youngest drags shit home all the time from the neighbor's trash. He had a small locked box that he couldn't open. He smashed it open, but the principle is that you cannot prove that someone can open a lock unless he has admitted it to you.

If you can open a safe in your example, the "testimonial" part is admitting that you have control over the safe and are theoretically responsible for the contents within. Refusal to open leaves reasonable doubt that you know the contents.

Re: Confusing

[JesseMcDonald]

No, they are breakable. We just don't know how many months or decades will pass before they become breakable.

"Months or decades" is under the assumption that there is some flaw in the algorithm, which (while not entirely unrealistic) is still a bit optimistic from the point of view of the codebreaker. Absent such a flaw, the time to break the code by brute force is on the order of billions of years with ideal computers using up all the matter and energy in our solar system. While not quite literally "unbreakable", that is close enough for practical use.

And then you have things like one-time pads, which (when properly implemented) are not even subject to brute-force searches and are mathematically proven to be unbreakable. The algorithm for a one-time pad is trivial; a child could use it to encrypt small messages even without the aid of a computer. The difficulties lie in securely sharing the pad with the intended recipient(s) and keeping it secret from others afterward. The advantages of the more complex algorithms are not that they are more resistant to cryptoanalysis than the one-time pad system which has been known for centuries—because they aren't—but rather that they remain reasonably secure even when the secret is small enough for a person to remember, that the secret can be reused for multiple messages, and, in the case of public-key crypto, that the secret does not need to be shared between the sender and the recipient.

Re: Confusing

[sabri]

The police are asking them to do something

in order to assist the government in prosecuting and convicting them of a crime.

Exactly. You just made my point.

Re: Confusing

[Agripa]

Hell, I can usually unlock my phone without even looking at it. And I'm not one of these social media addicts that's going into it every five minutes either.

I would have difficulty telling you the password that I have been using for years on my PC; it is long enough with an unusual spelling that I can touch type it but not write it down.

As far as phones, if the phone supported it then it would be relatively easy to use a password that I do not remember. The only requirement is that the phone only needs to be unlocked once until it is shut down. Then I can unlock the phone at the beginning of the day and if I shut it off, cannot unlock it until returning to where I have the password stored. There are several ways to store a password securely but this post is too short to describe them.

Re: Confusing

[Agripa]

My point was that NO system is unbreakable. Its just the matter of price.

... except that there are unbreakable systems. Or at least systems that at the moment are unbreakable. A properly generated and used one-time pad is a trivial example.

According to the Supreme Court, a "limited time" includes any finite but unbounded duration that Congress selects. So it would only take a "limited time" for the government to brute force common encryption schemes. So what is their complaint?

Re: Confusing

[Agripa]

Someone with infinite time and resources (because having infinite money doesn't make sense) could break the AES-256, except it might take longer than universe-s lifetime.

So it would still take a finite and limited time. The government just needs to nerd^H^H^H^Hbrute force harder.

Re: Confusing

[c6gunner]

I don't care about some people; I care about the dipshit I responded to.

Re:Confusing

[Imrik]

Or it would be evidence that the key was stored in a pocket with paper money in it.

Re:Confusing

[LeftCoastThinker]

I agree. The core of the problem here is akin to police finding a locked, impenetrable safe, and the key is hidden at another location that only the defendant knows. There is no judge in the US who would try to compel a defendant to tell police the location of the hidden key, yet these Luddite judges somehow think that they can compel individuals to divulge pass-codes (a hidden key that only the defendant knows about) to unlock their phones and therefore potentially incriminate themselves. The 5th clearly does protect against all forms of self incrimination, and unfortunately the only way this will be put to rest is if we can get the supreme court to rule or congress to pass a law clarifying that passwords cannot be compelled (along with protecting email and browsing history as private information requiring a warrant for police)... Or someone invents the self wiping phone, that wipes all data if it detects any form of tampering or is not properly logged in to at least every X hours, or some such measure to make it useless.

Re: Confusing

[amxcoder]

Was going to say something to this effect as well. I'm sure cipher text was a thing back then. Just because the encryption wasn't digital doesn't mean that any form of encryption didn't exist at all.

With that said, I'm pretty sure that the original intent of the 5th Amendment also covered not being required to decipher an encrypted note that you might have been carrying around, or that the authorities found among your person/papers/effects while performing a search warrant. If obtained by a proper warrant, they are free to TRY to decrypt it themselves, but cannot force you to help.

In this case, they want to force you to reveal your password, which is like forcing you to help decipher a letter written in code. It seems the courts are doing their best to make this seem different somehow, in order to help not only their current case, but also gain ruling for all future cases involving passwords and encryption. This is a troubling path IMO.

Re: Confusing

[amxcoder]

they can prove to a satisfactory degree that you owned the safe, and it is reasonable to presume that a person knows how to open their own safe. So there is nothing testimonial about admitting you know how to open the safe.

In the case of a physical lock, I'm pretty sure they still wouldn't force the person to provide the key to the lock or the combination to the safe during a search warrant. It's my understanding they can ask, but if the owner refuses during the execution of a search warrant, that they would simply confiscate the safe, and have a safe cracker or locksmith open it for them. As a last resort, they might even drill/cut the safe open (destroying said safe), in order to gain access without the suspects help.

I don't believe they would throw the suspect in jail indefinitely until they provided the combination to the safe like they are trying to do in a lot of these cases with passwords involved.

Re: Confusing

[AutodidactLabrat]

That's not what I'm requesting
I want a kill word in every cypher, different depending on the actual encryption key
Thus, any attempt to coerce a password carries the high liklihood of autodestruct
And the police must not have access to the algorithym and thus unable to determine if the key is the antikey

Re: Confusing

[AutodidactLabrat]

Yeah, but how tough to mimic the destruction as a standard penetration detection, thus making it likely the culprit was a ham-fingered tech
He can NOT prove he didn't mistype and that is reasonable doubt (get out of jail free card)

Re: Confusing

[AutodidactLabrat]

Oh, you mean besides the fact they don't HAVE the evidence, just a flimsy excuse based on "Testilying"?
Think convenient Bloody Glove found by Perjurer.

Re: Confusing

[Aighearach]

Right, the Judge will listen to your story, and if he will decide if he believes you that maintaining access to extra generic padlocks is the same as having access to a freakin' safe.

Remember, everybody's lawyer helps them come up with a story. All the people that go to jail for contempt, they had at least some basic story like you have. What you don't have is a convincing story.

Re: Confusing

[Aighearach]

We're not talking about "during a search warrant."

Re: Confusing

[david_thornley]

Ten wrong entries is an autodestruct on an appropriately configured iPhone..

Instant autodestruct on entering a specific wrong passcode is dangerous, and any suspect who gives the police the kill passcode is going to be charged with destruction of evidence.

Re: Confusing

[AutodidactLabrat]

Of course
But then comes the problem of PROVING the non-existent evidence actually WAS there
Thus the big breaker bar to enter homes before the evidence is flushed.
If the alleged culprit succeeds there is no trial.

Re: Confusing

[orlanz]

Of course!!!

But it is an even bigger cost on the whole to the rest of us to give up our freedoms and due process so that the very few victims can get better recourse. And I am assuming they actually get better justice, not just "feel good" justice.

Re: Confusing

[david_thornley]

If the police could prove massive flushing was going on, they might have a case for destruction of evidence, and that testimony would be relevant in a trial. (You don't have to be caught with illegal drugs to be convicted, although it's a lot easier to convict if you are.)

You do not in general have to cooperate with a search warrant. You do not in general have the right to impede it.

If this becomes personally significant to you, of course, I strongly suggest finding a real lawyer, rather than a guy who frequently opines on the law.

Re: Confusing

[AutodidactLabrat]

As you say, juries are made of people too ignorant to get out of that duty
That said, the "probable" evidence is not actual, and it's claimed destruction cannot be a basis for a "beyond reasonable doubt" conviction of anything.
The existence must be proved, beyond reasonable doubt.
FAR tougher than "probable cause" which is all the state agents needed for their warrant.

Re: Confusing

[david_thornley]

At least around here, it's hard to get out of jury duty, so we get all sorts of people on juries, not just losers. They're pretty flexible about when you should take it, but not about whether you do it. Things may be different elsewhere.

Destruction of evidence is, I believe, a crime in its own right. Its claimed destruction, along with evidence, can be a basis for conviction. Again, consult an actual lawyer to see how this is likely to go. I'm beyond my depth here.

Re: Confusing

[AutodidactLabrat]

The Prosecutor must prove there WAS evidence without having it.
MUCH tougher
That's what I said.
Want out of jury duty?
When they give you the questionaire, just remember the 32 cops who stood around and watched Rodney King be beaten and THEN filed perjured reports. not one was prosecuted
So check off the "I trust police" line and you will always be let go.

Re: Confusing

[Mattcelt]

I don't think an offer of quid pro quo constitutes compulsion. Can someone verify?

Worst. Summary. Ever.

[Anonymous Coward]

This is two different stories.

Wesley Victor, as it says, is not in jail. Christopher Wheeler, in a completely separate and unrelated case, is.

This has been a public service announcement.

TFS has Schizophrenia

[The Raven]

It can't make up his mind about whether he prevailed or failed. And that's because it fails to explain that 'A Hollywood man' from sentence one is not the same person as 'Wesley Victor' from sentence two.

Wesley prevailed. Christopher Wheeler failed.

Well, jeez folks...

[Anonymous Coward]

...you people seem to think you have a right to be secure in your persons, houses, papers, and effects, against unreasonable searches and seizures or something!

Re:Well, jeez folks...

[Dragonslicer]

If a judge issues a warrant, then you aren't (alternatively, the search isn't unreasonable). You should try reading all the way to the end some time.

Re:Well, jeez folks...

[Sparowl]

What happens when the judge issues a warrant for something I can not provide?

How do I prove that I do not have the password anymore?

Do we now have an unattainable burden of proof on the defendant?

Re:Well, jeez folks...

[Dragonslicer]

I was speaking generally, as the post I was replying to did.

In terms of this specific type of situation, I'm in the middle on it. Demanding a password should never be allowed as a way of establishing access or ownership; if a phone is found at a crime scene, the prosecutor should not be able to demand the password from you and then use the fact that you know the password as evidence that you were at the crime scene. If it's already shown beyond a reasonable doubt that you own a phone, though (such as the phone being in your pocket when you were arrested), I would be fine with a warrant that compels production of the contents of your phone.

Re:Well, jeez folks...

[david_thornley]

Search warrants can be challenged, and therefore the admissibility of the evidence from the unreasonable search and information stemming from that.

Re:Well, jeez folks...

[JesseMcDonald]

... I would be fine with a warrant that compels production of the contents of your phone.

They have the contents of the phone already, it's the contents of the defendant's mind that they want. To apply a non-technological analogy, the data on the phone (which they have) is written in a private language or code and they want the defendant to translate it for them.

Two cases in neighboring Florida counties

[Anubis IV]

The summary doesn't make it clear that these are two separate cases, both in Florida.

Christopher Wheeler is in Broward County and was sentenced to 180 days in jail for refusing to give police his password. He claims he already gave it to them, but the one he gave them doesn't work, hence the contempt of court ruling. Meanwhile, in an entirely separate case, Wesley Victor in neighboring Miami-Dade County claimed he didn't remember the password when he was ordered to provide it 10 months after his arrest, and the judge did not hold him in contempt.

From what I understand (as an Internet armchair lawyer, i.e. IANAL), both of these actually make sense. Wheeler, from the sounds of things, had indicated through his previous actions and testimony that it was his phone and that he knew the password, so supplying the password would not be considered testimonial in nature at that point, which is why passwords typically can't be compelled from people. As such, it makes sense to hold him in contempt of court if he refuses to hand over a password that they've already established he has. As for Victor, it had been 10 months since they had confiscated his phone, and he never claimed to remember the password at that point, so it makes sense (at least to me) that they wouldn't hold him in contempt of court.

What might be more interesting is Victor's girlfriend, who's in the same situation he is, but who provided the wrong password for her phone. If she's NOT held in contempt of court after doing so, it would be interesting to hear what the court's rationale is.

Re:Two cases in neighboring Florida counties

[rogoshen1]

Can a suspect be compelled to open up a locker/safe etc ? That sounds like the best real-world analog to the passcode on a phone or computer password.

On an aside, police like this kind of thing since that phone probably has a TON of unrelated fucking nibbles of data they could sift through to either

a) bring up new charges
b) use in other cases (such as if a drug suspect gets nabbed)
c) things that aren't strictly illegal, but otherwise embarrassing that could be used as leverage against the suspect.

Because once it's in their possession and unlocked, they can, and will do whatever they want with absolutely zero restraint or respect to non-pertinent info.. it's like opening yourself up for a fishing expedition.

Obligatory, I'm not a lawyer, but have been watching 'The Wire'.

Re:Two cases in neighboring Florida counties

[Sycraft-fu]

Ya it isn't completely clear since the article and summary are mixing cases but I can see a contempt ruling if you agreed you had a password, supposedly provided it, it didn't work, and then you tried to play dumb. While you aren't required to testify against yourself, that doesn't mean you can actively work to try and screw the court over.

So what to do if you are in a situation where the police demand you hand over a password? Keep your mouth shut. Same advice as defense attorneys will give for all things involving law enforcement. Tell them you want a lawyer and you aren't answering any questions. Your lawyer can then advise you on how to proceed. That is the whole thrust of the Miranda warning: You can keep your mouth shut and not answer any questions and wait to talk to a lawyer. You have that right, and they have to let you know you do. So use it.

But for sure don't do something stupid like say "Sure here's the code," and give them a fake code. There is no way that can help you, and multiple ways it can hurt you.

Re: Two cases in neighboring Florida counties

[Miamicanes]

I remember seeing a lengthy discussion about this on an Android forum... someone made a custom ROM that could be configured to wipe the phone if you touched the fingerprint sensor with one or two specific "kill" fingers (say, your ring finger, or your ring finger followed by your middle finger to silently confirm).

The general consensus: you'd have to be *insane* to use it to do something as brazen as a factory reset. Especially if you're doing it just to make a legal statement... the US legal system doesn't take kindly to being trolled, and most people who go against a court to assert their constitutional rights end up paying a terrible price and suffering badly for it, EVEN IF they ultimately prevail and get vindicated years later.

The subsequent consensus: if you're going to do it, make sure it runs discreetly, and ALSO make sure it leaves the phone in a state that looks sufficiently plausible to ward off more intensive forensic analysis (and know that if you *do* get caught doing it, you're totally fucked).

Re:Two cases in neighboring Florida counties

[Bob the Super Hamste]

Can a suspect be compelled to open up a locker/safe etc ? That sounds like the best real-world analog to the passcode on a phone or computer password.

My understanding is that a suspect cannot be forced to provide a combination to a safe. In such circumstances the police or prosecution is free to drill the lock or hire a professional lock smith to open it provided they can get a warrant, just like they would be allowed go and hire their own cryptologist and super computer to try and crack some crypto. The big beef is that unlike high end safes that are resistant to drilling and cracking, strong crypto is ubiquitous unlike really good safes.

Also I think a better analogy is can a suspect be forced to interpret data for the prosecution? I say this because the prosecution can already get at the actual data they just need help in understanding it. Looking at it this way it really does seem to be a violation of a suspect's 5th amendment rights.

Then again IANAL either and the courts seem to be a rather fickle thing.

Re: Two cases in neighboring Florida counties

[currently_awake]

A better plan would be to have a hidden disk partition that only mounts if you use a specific finger followed immediately by another specific finger. The phone still works either way, but the company secrets are protected.

IGNORANT ARTICLE

[spikeysnack]

Christopher Wheeler, 41, is in Hollywood, currently facing child abuse charges. The password he gave to the police did not work. His argument is that compelling him to give the police the password is moot because he already gave it. The fact that it is wrong is not his fault for not remembering it correctly. The Judge was not moved and sentenced him to 180 days. The police are giving the explanation for needing the phone because they "suspect he has more abuse pictures on there" -- sounds pretty thin. We don't know. In Florida , A man was jailed for 10 months, on some charge. His lawyer successfully argued that his client cannot give the password because after 10 months away from his phone he cannot remember it. These cases show that the law has no idea how to handle encryption. There is an assumption on the part of law enforcement and those in power that the right to privacy is not something to be protected just an obstacle to be overcome, usually by breaking the rules first and justifying it later. You are supposed to be able to keep your mouth shut. This includes not being forced to reveal documents, recordings, hidden personal belongings, etc. Apparently many prosecutors feel this is a gray area. It is not. But in this Trumpian world we have today, it seems you can escape the law if it makes some people feel better, or it boosts your popularity. The politics of it are "If we can show that by violating this person;s rights, we can convict him, then society will turn a blind eye to the violation." This is the plot of every action movie, every TV cop show, every "hero save the day by breaking the rules" plot. But they never get to the point after where after the rule is broken by the hero, it no longer exists. Once we let these guys jail us for not giving the keys, it then happens to everyone not powerful enough to stop it. We caught a "Child Abuser" so called. So who needs rights? The false equivalency of violating accused persons rights is alright depending on what they are accused of is a Soviet-Era ploy old as time. Old as the story of Robin Hood, which never actually happened, and was a political/religious propaganda story from its origin. State Power vs Citizen rights is always tested, and the argument is always the same -- the people in power claim moral necessity to initially break the right, then just do it as normal proctice afterwards. Until they are stopped by the people.

Re:IGNORANT ARTICLE

[ledow]

What I say below applies to almost any country based on English law.

The significant difference is "reasonable belief".

If a kidnapper takes a child, hides her away, and then gets arrested without her, your scenarios also apply to the location of the child. It's information, in his head, that you can't torture him or whatever into giving up. He might well refuse to tell you.

If, however, you have a reasonable belief that he KNOWS where the child is hidden away, i.e. you arrested him while he was on the run and it was clearly him who took her, but you just can't find the child, then you CAN force him (legally, not physically) to give up the location. Failing to divulge it would normally be punished by harsher penalties than, say, the inevitable kidnap/child-death charges that they would cause by not doing so. The point is to give them the option.

If there's reasonable doubt over whether he could know the location of the child (she ran from him while he was still on the run, and he shows you the point where she wriggled free and ran away), then maybe you wouldn't be justified in punishing him for not divulging her location.

Similarly, is it REALLY that so far-fetched that a man with a smartphone doesn't remember his code? Has he been carrying around a useless phone for days? Charging it?
Making calls on it? Paying for it? When he can't even get into it himself? The courts will sometimes decide that, actually, that's not a realistic scenario. Especially if, for instance, the person in question was recently arrested for having child porn and he's been using his phone up until that point.

Unless he can prove reasonable doubt (e.g. that he was in the Apple Store that week asking how to unlock it because he'd forgotten the code), there's "reasonable belief" that he is merely withholding that information.

In some legal jurisdictions, questions over this are removed by the creation of specific offences. Encryption is a big one. But also things like the driver of a vehicle. If my car is spotted speeding but they don't catch the driver at the time, they can ask me to identify the driver. If I fail to identify the driver and don't have reasonable cause for doing so (e.g. the car was stolen), then I can get a harsher punishment that the driver ever would have. Because it's my car and I either authorised or enabled the driver to drive it, or it's been taken without permission and hence the driver is up for TWO charges - even if I know him!

Boiling down law to "catchphrases" (e.g. freedom of speech) is an incomplete and somewhat ineffective legal system. Nothing is that clear-cut. And if you want justice, it's not unreasonable to assume that - in a situation like this - the guy does know the passcode but doesn't want to say. The reason for that is likely that whatever's on his phone will incriminate him, yes. And thus the punishment for failing to reveal - if there is deemed reasonable cause - such passcode is worse than whatever could come out of giving the passcode.

This is the way that justice sometimes forces you to comply in order to detect and prevent crime.

If nothing else, even at the end of the 180 days, there's little to say that that would be the end of the matter. Most places would just impose that sentence and be done. But it wouldn't be unheard of for that sentence to merely be the deterrent to refusing the NEXT legal request along the same lines.

Outside of the law - The attitude of the guy would tell you a lot in the circumstances, too. Was it refusal from the start? Had he been using it before the arrest? Has he requested the phone to try the code himself in case he got the pattern wrong? Is he co-operating? Is he devastated at the accusation? Or is he just sitting grinning. A lot about how much further evidence is likely to be gleaned and where/how much he might not be revealing is often given away by cockiness. And, it has to be said, by people giving your kinds of rants when arrested, even if innocent.

New way for the spooks to lock you up.

[Anonymous Coward]

They demand your password, and you hand it over, not wanting to go to jail for half a year. They open your phone, change the password to something random, and lock it. See you in prison.

Re:New way for the spooks to lock you up.

[hcs_$reboot]

Well, if you can't even trust the legal system...

Re:New way for the spooks to lock you up.

[Tomahawk]

So you demand that they keep the screen of your phone in your sight at all times. It's like bring a diamond ring into a jeweller to get the stones re-set - you don't let the diamonds out of your sight. Same for you phone.

There should really be laws (or at least guidelines) in place to ensure that 2 or more officers are present when someone's phone is taken from them. I'm guessing there aren't, though...!?

Re:5th Ammendment

[penix1]

The Constitution allows for the issuance of a warrant, supported by probable cause, to search for evidence of a crime. A warrant was issued for the phone and specifically the data on the phone. That is the 4th Amendment being applied properly. The 5th applies to producing testimony against yourself. Data on a phone is not testimony. It is evidence if anything. Whether that evidence leads to a conviction or not is up to the prosecution / defense arguments.

Think of it this way...

If you write a note that says, "I killed Joe." and put that note in a box. The police get a warrant for the box and find the note, it is evidence that the prosecution then has to prove is valid. Same thing here.

BTW, he was jailed on the basis of contempt of court charges for denying the proper code for the police to comply with the warrant. The judge didn't buy the defendant's argument that he gave them the proper code.

I am truly sorry your honor!

[OrangeTide]

But when under stressful situations I have difficulty remembering numbers. Ask my my social security number, I won't remember that either.
This is getting way too intense, and I am feel very stressed. can I please go now? No? That seems cruel, and unusual.

Nice way to frame somebody!

[gweihir]

1. Ask for passcode
2. Unlock phone, find no incriminating evidence, change passcode and lock phone again
3. Claim wrong code was provided

Voila, guilty until proven innocent. Which the accused cannot do.

Re:Nice way to frame somebody!

[hcs_$reboot]

2. Unlock phone, find no incriminating evidence, change passcode and lock phone again

Why not going further: Unlock, then inject into the phone some incriminating evidence. Guys, at some point we need to trust ad minima the legal authorities.

Re:Nice way to frame somebody!

[Golddess]

"I will gladly give you my password, but only in the presence of my lawyer, and only if the phone is also present and immediately unlocked in front of both my lawyer and myself. All data collection must then be performed right then and there, in front of both my lawyer and myself. Before the phone leaves my sight, I get to change the password and relock it. Only myself and my lawyer will know this new password. My lawyer will know it because, since I cannot take my usual time coming up with a new password, I will most likely forget it."

Re:Nice way to frame somebody!

[painandgreed]

1. Ask for passcode 2. Unlock phone, find no incriminating evidence, change passcode and lock phone again 3. Claim wrong code was provided

Voila, guilty until proven innocent. Which the accused cannot do.

That would never happen, here is the actual sequence of events in today's legal system. 1. Ask for passcode 2. Unlock phone, find no incriminating evidence 3. Plant child porn downloaded from the FBI 4. Change passcode and lock phone again 5. Have a "clean" officer (who does not know about steps 1 through 4) use the Israeli law enforcement hacking tool to re-unlock the phone 6. Prosecute suspect for child pornography

I don't think we're talking about a case where the FBI or Israeli law enforcement might be involved. We're talking about a single cop who thinks the guy is guilty, like the ones that claim they were being attacked by a suspect and shot him, till it's revealed their's video that disproves their testimony, simply doing this because it's a quick fix. Hopefully, we'd have an evidence system that would prevent such actions, but then again, doubtful.

Re:Nice way to frame somebody!

[Gussington]

Came here to say the same thing. This is a open door for corrupt cops to abuse their power.
I'd be interested see a comparison of the current laws and restrictions in the US today and Soviet Russia in the 80's. Reagan would be rolling in his grave.

Re:Nice way to frame somebody!

[Your.Master]

I just think you shouldn't have to provide your password -- but if you do have to, then it should be a secondary read-only password that allows access to data but doesn't allow evidence planting or changing passwords.

Horrible headline

[HalWasRight]

He wasn't jailed for refusing to give police his passcode, he was jailed for refusing a court order from a judge. That is vastly different than a police officer on the street demanding access to your phone, which the headline makes it sound like.

Re:Horrible headline

[Anonymous Coward]

We need some court orders to solve the Riemann hypothesis or other unsolved problems...
Go to jail until you can prove the theorem -> scientific advancement?

Re:Horrible headline

[Hrrrg]

No he was jailed because he can't remember the password. He can't tell the judge something he doesn't know.

Re:Horrible headline

[JustNiz]

But it amounts to the same invasion of privacy, which is the same thing no matter who it comes from.

Re:Horrible headline

[Actually, I do RTFA]

In the US we hold them to be very different things. For instance, a judge is required to approve entry to a home to look for evidence. The officer is charged with solving a crime, the prosecutor with prosecuting it, and the judge with enforcing limits on them (and the defense).

Re:Horrible headline

[JustNiz]

Well that's clearly not how its working here. The judge isn;t enforcing limits on the cops, he's using the system to apply duress to the defendant, which by everything I've read is illegal under US law.

The fact is that in the US, the judges clearly believe themselves to be above the law because they sometimes act without regard to the law, and even in direct contradiction to it. The real problem is that no one holds them accountable.

Re:5th Ammendment

[OrangeTide]

That he has a passcode or not is not normally a fact that proves or disproves a crime. Simply stated, locking your iPhone is not a crime, Therefor being compelled to unlock it is not incriminating. (a bit circular, but that's how I understand it)

Being forced to testify as to the contents of your phone is not allowed by the Fifth Amendment. If you're being interrogated by the police or on the stand and they ask if you have anything on your phone they should know about. You can use your Fifth Amendment right and refuse to answer. Maybe you can also use your First Amendment right and tell the cop to get off his ass and do his own detective work instead of trying to trick people into false confessions. (probably not a smart move, but it feels right)

You should also talk to a lawyer before you get to that point, I am not a lawyer, I am only talking theoretically here.

Re:5th Ammendment

[BitterOak]

The 5th applies to producing testimony against yourself. Data on a phone is not testimony.

True, but the passcode is, as long as the only place it is being stored is in the defendant's head. The way the iPhone works, is the data is encrypted, and part of the decryption key is the passcode. The warrant gives police access to the data on the phone which is ciphertext. The police are welcome to that and no one is stopping them from getting that. But the police don't want the ciphertext; the police want the plaintext. The plaintext is found by combining the ciphertext with the passcode (which is in the defendant's head) using the phone's encryption/decryption software. At least part of the what they want then can only be found in the defendant's head, and that makes it testimony and it is (or should be) protected by the 5th Amendment. Unlike the 4th Amendment, there is no exception to the 5th Amendment when warrants are issued.

"I've given them the password"

[nine-times]

"I swear, under oath, I've given them the password," a distraught Wheeler, his hands handcuffed behind his back, told Circuit Judge Michael Rothschild

He had explained that his password was "fourwordsalluppercase"; one word, all lowercase.

Re:"I've given them the password"

[Gussington]

You owe me a new keyboard...

Re:Gut unfortunately says Judicial ruling right.

[BitterOak]

The act of giving a password etc. is not actually incriminating in itself.

In the past, at least before cellphones and computers, courts have interpreted the Fifth Amendment much more broadly than you suggest. Any testimony which may lead police to discover crimes you've committed is considered, for the purposes of a 5th Amendment analysis, to be incriminating. The 5th Amendment doesn't merely protect you from having to testify "Yes, I killed my wife," it also protects you from having to testify that you had driven to a secluded spot on the coast the following morning where you hid her body.

This is torture...

[Anonymous Coward]

The judge should be tried in an international court of law since this is thinly veiled torture. The key point here is that apparently he will be released if/once he gives up the password. It is of course not physical torture, but it is psychological torture.

Re:Gut unfortunately says Judicial ruling right.

[mark-t]

If you refuse - the judge probably has the power to hold you in contempt of court if he found it unbelievable that you do not know that password. (different standard of proof - perjury would be higher).

So what you do is make it believable that you cannot provide the means for them to unlock the devicee. Wetware could be your friend here.. granted, it may still be a few years away before we can feasibly do this, but you tie your password in part to what you are thinking as you enter it, and it may even be possible to tie it to your emotional state as well, or maybe even some of your subconscious states, so that if you are under any kind of duress to unlock the device, the password will not work, making it provably impossible to comply with their demands (obviously the device would still be usable for emergency purposes such as calling 911, even if under duress, since you would not ordinarily need a password to access such functionality anyways).

At that point, because of the technology that is built into it, it's impossible for anyone to make any reasonable case that you are deliberately acting in contempt of court when you cannot open the device for them, and I'm not sure entirely how a court that would otherwise have made such a case would respond to this sort of mechanism.

The Alt-Right's just full of rage

[rsilvergun]

over their bad economic conditions. It's never had and never will have anything to do with freedom. Give them good jobs, a family and paid vacations like their parents had and they'll dissipate into the wind.

Re:5th Ammendment

[Anonymous Coward]

I'm reminded of the droves of inquires in the highest levels of our government where some of the most powerful people in the nation invoked the 5th amendment, or spat out "I don't recall" to every question they were posed.

The working code...

[Tomahawk]

...is likely one of these:

#include

int main(int argc, char *argv[]) {
    for (int i=0; i10000; i++) {
        printf ("%04d\n", i);
    }
}

Can I go free now?

Re:Gut unfortunately says Judicial ruling right.

[Tomahawk]

It could be done with some biometrics - is your pulse or blood pressure higher than normal, eye dialation, etc. Could be done with current tech...

5th Amendment

[sageres]

Could someone please please please explain to me why is it not covered under the protection against self-incrimination in the 5th amendment?

Re:5th Amendment

[sl3xd]

Because some yahoos think that there is an analog outside of computers: Many believe a court can compel you to hand over the keys (or combination) to a safe.

That's not strictly true.

What a court can do is take possession of the safe, and then hire somebody to open it for them. Competent locksmiths are generally able to defeat a keyed lock in minutes, and many of the better locksmiths can open a combination safe in a few hours. Worst case, there's always the direct approach: drills, grinders, pry bars, and time.

Cracking a phone isn't as straightforward as a safe.

Prosecutors don't like that they can't force their way into a person's phone the way they could with a safe or file cabinet, and in our adversarial legal system, they're incompetent if they don't try to compel a password disclosure. (It's supposed to be the defense that objects, and the Judge is supposed to decide who gets their way -- the problem being that the precedent hasn't reached the Supreme Court, so judges currently have a lot of leeway to do as they like.)

Re:5th Ammendment

[Anonymous Coward]

If you write a note that says, "I killed Joe." and put that note in a box. The police get a warrant for the box and find the note, it is evidence that the prosecution then has to prove is valid. Same thing here.

No, not "same thing here", but you are close.

The difference is the note doesn't say "I killed Joe", it says "lcsorngepzmn", and the cops are now demanding that you teach them how to read the note.

I'd be in trouble

[Cro Magnon]

My password is "I don't remember".

Re:I'd be in trouble

[Tunefix]

My password is "incorrect".

I forgot?

[ramriot]

So if a judge refuses to take your I forgot the PIN defence and jails you for contempt, excluding a 5th amendment defence what are you to do.

Well this guy now has 180 days to start from 00000 & work to 99999, handing the completed list to the cops with the honest statement, the code is one of the items on this list, now let me out.

Re:Worst. Reading. Comprehension. Ever.

[david_thornley]

Both were required to hand over passcodes. In one case, it had been ten months since the defendant had used the passcode, and the defendant claimed to have forgotten it. In another, the defendant handed over a passcode, which the police claimed did not work, and the judge had no reason to believe the defendant might have forgotten the code.