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

[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

[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

[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]

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

[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

[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

[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

[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

[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

[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.

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.

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...

[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?

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

[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.

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.

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!

[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."

"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: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.