Highest Court In Indiana Set To Decide If You Can Be Forced To Unlock Your Phone (eff.org)

The Electronic Frontier Foundation argues that police should not be allowed to force you to turn over your passcode or unlock your device. "The Fifth Amendment states that no one can be forced to be 'a witness against himself,' and we argue that the constitutional protection applies to forced decryption," writes the EFF. Last week, the non-profit digital rights group filed a brief making that case to the Indiana Supreme Court, which is set to decide if you can be forced to unlock your phone. From the report: The case began when Katelin Eunjoo Seo reported to law enforcement outside of Indianapolis that she had been the victim of a rape and allowed a detective to examine her iPhone for evidence. But the state never filed charges against Seo's alleged rapist, identified by the court as "D.S." (Courts often refer to minors using their initials.) Instead, the detective suspected that Seo was harassing D.S. with spoofed calls and texts, and she was ultimately arrested and charged with felony stalking. Along with a search warrant, the state sought a court order to force Seo to unlock her phone. Seo refused, invoking her Fifth Amendment rights. The trial court held her in contempt, but an intermediate appeals court reversed. When the Indiana Supreme Court agreed to get involved, it took the somewhat rare step of inviting amicus briefs. EFF got involved because, as we say in our brief filed along with the ACLU and the ACLU of Indiana, the issue in Seo is "no technicality; it is a fundamental protection of human dignity, agency, and integrity that the Framers enshrined in the Fifth Amendment."

Our argument to the Indiana Supreme Court is that compelling Seo to enter her memorized passcode would be inherently testimonial because it reveals the contents of her mind. Obviously, if she were forced to verbally tell a prosecutor her password, it would be a testimonial communication. By extension, the act of forced unlocking is also testimonial. First, it would require a modern form of written testimony, the entry of the passcode itself. Second, it would rely on Seo's mental knowledge of the passcode and require her to implicitly acknowledge other information such as the fact that it was under her possession and control. The lower appellate court in Seo added an intriguing third reason: "In a very real sense, the files do not exist on the phone in any meaningful way until the passcode is entered and the files sought are decrypted. . . . Because compelling Seo to unlock her phone compels her to literally recreate the information the State is seeking, we consider this recreation of digital information to be more testimonial in nature than the mere production of paper documents." Because entering a passcode is testimonial, that should be the end of it, and no one should be ordered to decrypt their device, at least absent a grant of immunity that satisfies the Fifth Amendment. The case gets complicated when you factor in a case from 1976 called Fisher v. United States, where the Supreme Court recognized an exception to the Fifth Amendment privilege for testimonial acts of production. "State and federal prosecutors have invoked it in nearly every forced decryption case to date," writes the EFF. "In Seo, the State argued that all that compelling the defendant to unlock her phone would reveal is that she knows her own passcode, which would be a foregone conclusion once it 'has proven that the phone belongs to her.'"

"As we argue in our amicus brief, this would be a dangerous rule for the Indiana Supreme Court to adopt. If all the government has to do to get you to unlock your phone is to show you know the password, it would have immense leverage to do so in any case where it encounters encryption."

Comments

The thing is that there's nothing they can do

[Anonymous Coward]

You just add a layer of understanding on top of the encryption.

What are they going to do about it?

But then the police harass, and it's like well wait what is harassment, then it's like well you did bad to these people, then it's like well you did this.

Then it's like well, how are you forced to unlock your phone?

So where's the 5th?

What are they allowed to spend money for? Or are we just paying them to be having fun? Either way, uhm this is a problem and what is it that they cannot believe?

Or do they believe in everything should go through everything everyone else went through?

Re: The thing is that there's nothing they can do

[Type44Q]

What are they going to do about it?

Wow, you're astute: they'll either:

A) Throw you in a cell and wait patiently until you crack, or

B) Move the schedule up with Ye Olde Pipewrenche.

Re: The thing is that there's nothing they can do

[jwhyche]

B) Move the schedule up with Ye Olde Pipewrenche.

This is the 21st century, nobody is going to take pipe wrench to your ass. For one it leaves to many marks. Modern techniques use low voltage and work it up from there. Just as good as a pipe wrench but leaves lots of room for possible deniability. No marks when done by a professional

Re: The thing is that there's nothing they can do

[Anonymous Coward]

Easy solution, two passwords, two accounts. Both encrypted, no way to tell how many accounts exist.

Sure officer, my password is fake123, have at it.

Re: The thing is that there's nothing they can do

[ShanghaiBill]

No marks when done by a professional

Waterboarding also works very well, and leaves no marks. Just a bit of duct tape to cover the nose, and a trickle of water into the back of the throat is all it takes.

The only risk of marks is the suspect struggling against the restraints, so always use plenty of padding.

Re: The thing is that there's nothing they can do

[Z00L00K]

Her name is already public, so she's now officially toast anyway since calling the 5th means that she has something to hide.

Good luck for her the next decade to find a decent job.

Re: The thing is that there's nothing they can do

[Anonymous Coward]

"Hey, we entered the password you gave but found nothing incriminating. Give us the real password."

But you weren't using a hidden volume, there is no other password to give. Unfortunately for you, it is impossible to prove, so now you rot in jail for life.

Re: The thing is that there's nothing they can do

[Anonymous Coward]

For all you know, the thing she doesn't want seen were sexts to her boyfriend which have no bearing on this case. But look at you... condemning her without a shred of proof.

Hey, why not post your un-redacted credit card bill on here? If you don't it clearly means you have some illegal activity to hide and you should never be allowed to hold a decent job again, right?

Re: The thing is that there's nothing they can do

[grep -v '.*' *]

This is the 21st century, nobody is going to take pipe wrench to your ass.

If it was good enough for the Godfather, it's good enough for me.

No marks when done by a professional

Amateur. You ALWAYS sign your work. If I'd wanted deniability, then you wouldn't ever find the subject to start with.

Re: The thing is that there's nothing they can do

[Khyber]

Start posting your personal details so we can tell if you have something to hide or not, asshole.

See how quickly that gets turned on your sorry and ignorant old ass?

Oh, you're a Z00phile. Pretty obvious by your name, animal fucker. Got that pawprint tattoo, too?

Re: The thing is that there's nothing they can do

[Khyber]

Oh, speaking of cowardly shit, looks like your bedug.com domain is all "Redacted for Privacy" on whois.

You fucking hypocrite cowardly fuck. What kind of child porno server are you running behind that domain, eh?

Re: The thing is that there's nothing they can do

[drinkypoo]

This makes me pine for the Bush and Obama days before the world had such dictators. Don't bee too surprised when Mueller indcits Trump for things like torture and bombing men, women, and children.

Obama didn't get indicted for drone striking men, women, and children. Why would Trump? That would set a precedent that neither party wants to see.

Re: The thing is that there's nothing they can do

[BeanHD (555)]

What "president" would they want to see if the party's are both in it, pardon the pun? How do we get away from raping the world?

Re: The thing is that there's nothing they can do

[jpaine619]

Are you trying to spell "parties"?

Re: The thing is that there's nothing they can do

[jpaine619]

Amateur. You ALWAYS sign your work. If I'd wanted deniability, then you wouldn't ever find the subject to start with.

Only an amateur would think that a body disappearing wouldn't create a whole bunch of questions. A raving person with no marks can be written off as a nut job. Sometimes a cowed person is more valuable to "the cause" than another corpse.

Re: The thing is that there's nothing they can do

[Sique]

The schedule with ye olde pipewrench (or any other method of torture) has been known to be a very stump weapon in real investigations since about 350 year (Friedrich Spee's Cautio criminalis has the details. It's just an intimidation tool. But if you really want to get information, torture is generally worthless. All it can do is enforce what you already know or believe to know.

Torture is used to get a confession, not information, and 24 Hours is a TV series, not a descriptive teaching of proven investigative methods.

Re: The thing is that there's nothing they can do

[Anonymous Coward]

President Barack Hussein Obama is a recipient of the Nobel Peace Prize and loved by Europe. Nothing he does can be wrong. Anyone thinking otherwise should be killed.

Re: The thing is that there's nothing they can do

[Anonymous Coward]

For the record, Trump is being hanged for TREASON, not because he lied about the first black President and never grew the balls to admit it. Trump is a lying faggot but it's the treason that he'll be killed for. Let's be clear.

Re: The thing is that there's nothing they can do

[Anonymous Coward]

Torture works - on people having no training. Likely true for this girl.

Torture makes people talk. So the most basic advice is - resist as long as you can, then LIE when you can't take any more.

More advanced versions extends this scheme a bit - tell a bad lie first. When they don't buy that and keep interrogating with torture, pretend to crack and tell a good lie. And stick to it. And behave the way people usually do when torture drives them crazy - whoever instructs you on such matters, probably knows such things.

Torture is considered non-functional for this reason - people will say anything to make the torture stop. Typically, they will say whatever they think you want to hear. Torture won't work with a prepared secret agent, or a true fanatic. It might work on a dumbass criminal - which is why cops have some success beating them up. Beatings leave marks, but "He tried to escape."

Torture might work better if you have many subjects to wreck. Which you generally have in wars. Some of them will eventually tell the truth, the rest will eventually stick to different lies. So you can go with the one story you hear the most - unless that happens to be a lie prepared for all of them - or the common "They guy who died in the initial fight did/planned it all!"

Re: The thing is that there's nothing they can do

[currently_awake]

Right to privacy! Just get a EU court to order all the records de-indexed.

Re: The thing is that there's nothing they can do

[currently_awake]

Torture can be used to get information where you can prove if it's true or not, like water boarding someone until they give the safe combination. Any other use of torture is stupid.

Re: The thing is that there's nothing they can do

[GLMDesigns]

Still waiting to hear about this treason and collusion y'all are blathering about.

I didn't vote for him but have been pleasantly surprised with the economy, with the progress in the Koreas, the fact that he isn't war-mongering in the mid-east.

The lies and stupidity over Kavanaugh and others - like those high school kids - makes me have an antipathy for the Democrats the same as I've had for the Republicans.

Re: The thing is that there's nothing they can do

[Anonymous Coward]

Habeas corpus bitches.

Re: The thing is that there's nothing they can do

[drinkypoo]

I didn't vote for him but have been pleasantly surprised with the economy,

Trump has only harmed the economy, he hasn't helped it. Even conservative-loved Harley-Davidson has had to move thousands of jobs overseas as a result.

with the progress in the Koreas

You know NK hasn't stopped nuclear testing right?

the fact that he isn't war-mongering in the mid-east.

He is, he's just claiming he isn't.

The lies and stupidity over Kavanaugh

What lies?

Re:The thing is that there's nothing they can do

[Anonymous Coward]

Where's my -1 Word Salad option?

Re: The thing is that there's nothing they can do

[Anonymous Coward]

That is of course rather painful for those involved. One should not as a rule reveal one's secrets, since one does not know if and when one may need them again. The essential English leadership secret does not depend on particular intelligence. Rather, it depends on a remarkably stupid thick-headedness. The English follow the principle that when one lies, it should be a big lie, and one should stick to it. They keep up their lies, even at the risk of looking ridiculous.

• "Aus Churchills Lügenfabrik" ("Churchill's Lie Factory"), 12 January 1941, Die Zeit ohne Beispiel (Munich: Zentralverlag der NSDAP., 1941), pp. 364-369

Re: The thing is that there's nothing they can do

[bev_tech_rob]

Her name is already public, so she's now officially toast anyway since calling the 5th means that she has something to hide.

Good luck for her the next decade to find a decent job.

Helpful bit of info concerning that assumption... https://www.youtube.com/watch?...

Re: The thing is that there's nothing they can do

[dcw3]

Yeah, lowest unemployment rate since the 60s...certainly he's "harmed the economy".

The last missile test NK did was 28 Nov 2017.

Please point to the warmongering your claiming...would it be Syria or Afghanistan, where he's been trying to pull troops out? Or, would it be getting NATO to pay it's fair share for their defense?

And, FWIW, the man is an ass, and I didn't vote for him.

Re: The thing is that there's nothing they can do

[dcw3]

Her name is already public, so she's now officially toast anyway since calling the 5th means that she has something to hide.

Good luck for her the next decade to find a decent job.

There are plenty of managers (like myself) who would gladly hire someone who stuck up for what's right. Assuming she's found innocent of any wrongdoing, she'll likely end up with offers of employment from people who've followed the case.

Re: The thing is that there's nothing they can do

[Anonymous Coward]

Take your meds

Re: The thing is that there's nothing they can do

[Anonymous Coward]

Assuming she's found innocent of any wrongdoing

Who would do that? At best, she'll be found not guilty, which certainly doesn't mean she was innocent.

Re: The thing is that there's nothing they can do

[Z00L00K]

It's GDPR. And I had to close the Drupal server I was running due to security bugs. But that's what you get for trusting that PHP is in any way safe and stable.

Re: The thing is that there's nothing they can do

[drinkypoo]

Yeah, lowest unemployment rate since the 60s...certainly he's "harmed the economy".

A lot of things are lowest right now, like how much money people have in savings. Americans are living paycheck to paycheck, even ones with good jobs like federal workers. And many of those who do have jobs are underemployed, meaning they're going further and further into debt to support their families. Eventually, they'll have to go bankrupt, like a Trump casino, and it will cost all of us money.

The last missile test NK did was 28 Nov 2017.

They haven't dismantled the facilities they use to build the weapons. There will be more tests.

Please point to the warmongering your claiming...would it be Syria or Afghanistan, where he's been trying to pull troops out?

You believe this theater shit? What a tool.

Or, would it be getting NATO to pay it's fair share for their defense?

That's happening already.

And, FWIW, the man is an ass, and I didn't vote for him.

Then why are you repeating his propaganda like a parrot?

Re: The thing is that there's nothing they can do

[Anonymous Coward]

"uranium supply" - that was Hillary.

Or are you trying to rewrite history?

Re: The thing is that there's nothing they can do

[GLMDesigns]

with the progress in the Koreas

You know NK hasn't stopped nuclear testing right?

- The missile launches have stopped.
- The industrial grade loudspeakers spewing propaganda have stopped AND have been torn down. Stopping the propaganda would have been something. Tearing down the loudspeakers and the 30' platforms they were on is next level sh!t.
- Bodies were exhumed in the 100s (if not 1000s now) and returned to SK and the US. DNA tests shows that these are not simply "bodies"
- Mine shafts leading to underground testing sites have been blocked up and the railroad tracks leading there have been ripped up.
- Mine fields are being dug up on both sides of the border.
- NK artillery piece were moved away from the border. The first time in close to 70 years.
- The Koreas are talking - and beginning development of shared commuter railroad lines. (This is amazing.)

But yeah. Nothing is happening.

First soldiers identified from remains returned by North Korea - BBC ...
https://www.bbc.com/news/world...
Sep 21, 2018 - The US Army has identified the first of the remains believed to be US troops killed during the Korean War and returned by Pyongyang, officials ...

North and South Korea begin removing landmines along fortified DMZ
https://www.telegraph.co.uk/ News
Oct 1, 2018 - Troops from North and South Korea began removing some landmines along their heavily fortified border on Monday, the South's defence ...

North and South Korea Hope to Link the Peninsula Through Railways ...
fortune.com Briefing Korean peninsula
Dec 26, 2018 - North and South Korean officials try to connect a railroad during a groundbreaking ceremony for a project to modernize access the heavily ...

Re: The thing is that there's nothing they can do

[drinkypoo]

The missile launches have stopped.

Get back to me when they eliminate their nuclear development facilities. Regardless, none that shit has anything to do with Trump. Lil' Kim wanted to do that stuff for economic reasons.

Re: The thing is that there's nothing they can do

[GLMDesigns]

Which is why he was launching missiles? And why he didn't negotiate with Obama?

But it has nothing to do with Trump offering the correct carrot and stick.

Right. Got it.

Trump BAD.


Just so you start grasping things. I didn't vote for him. I didn't think he would do as well as he's done. But of course. Orange Man Bad.

Spirit of the 5th amendment

[schwit1]

Nobody should be compelled to aid in their own prosecution.

Re:Spirit of the 5th amendment

[Etcetera]

Can you be forced to open up a physical safe? (Generally not, but the police can call a safe-cracker to get in as long as they have a warrant.)

But how about a booby-trapped safe? Or one that incinerates the paper contents if a lock is forced?

I think those are the types of comparisons that should be made when doing legal analysis on smartphone / computer storage devices (again, assuming the police have a judicially-approved warrant).

The "it's encrypted so the bits don't philosophically exist" argument doesn't pass muster, sorry. You could say that about any stream of data, mathematically speaking. Or even programmatically speaking. ("This spreadsheet containing my drug cartel's finances is only such if you interpret the magnetic data in a certain way!") Unless the Feds are calculating hash collisions on you to plant evidence, it should be assumed that encrypted data is not data nullis until decrypted.

Re:Spirit of the 5th amendment

[Anonymous Coward]

As I understand, you can be forced to give information that does not directly incriminate you. A password would seem to me to fall in this domain (unless you knowing the password or the password itself would potentially incriminate you).

Full warning, I have no law degree so take this all with a grain of salt.

Re:Spirit of the 5th amendment

[Anonymous Coward]

Can you be forced to open up a physical safe? (Generally not, but the police can call a safe-cracker to get in as long as they have a warrant.)

Nothing is stopping the police from brute forcing the password.

But how about a booby-trapped safe? Or one that incinerates the paper contents if a lock is forced?

Depending on the circumstance, that may lead to obstruction of justice charges. The problem is, there's nothing inherently about a difficult to guess password that makes the contents unguessable. AFAIK, almost all encryption systems use a key encrypted with a supplied (usually hashed) password. Almost all booby-trapped encryption systems erase the encrypted key, not the contents itself. That means the content is still there and instead of brute forcing the password you'd have to brute force the key itself. That might, hypothetically, make the search harder but practically a good password should make the search equally difficult.

I think those are the types of comparisons that should be made when doing legal analysis on smartphone / computer storage devices (again, assuming the police have a judicially-approved warrant).

So long as the data itself is destroyed, encrypted or otherwise. The problem is proving the data was destroyed.

The "it's encrypted so the bits don't philosophically exist" argument doesn't pass muster, sorry.

Actually, the argument is the password creates the [unencrypted] data. There's nothing about "doesn't philosophically exist".

You could say that about any stream of data, mathematically speaking. Or even programmatically speaking. ("This spreadsheet containing my drug cartel's finances is only such if you interpret the magnetic data in a certain way!")

Uh, no. Mathematically speaking data has certain levels of information entropy. Further, the actual possible amount of valid interpretations is based upon a whole host of format standards. What you suggest is equivalent to the absurd of suggesting that English text in a paper document could be interpreted as French because the alphabet is sufficiently equivalent. That's on its face absurd. What is interesting, instead, is the question of how close random data and encrypted data are in information density and hence how possible or impossible it is to know if something is in fact encrypted data or not. That is, in fact, a major design goal of encryption.

Unless the Feds are calculating hash collisions on you to plant evidence, it should be assumed that encrypted data is not data nullis until decrypted.

Depending on what level of paranoia you have, you may legitimately format your storage with random data making it impossible to know if any section of space is in fact encrypted data or random data. If that is the norm for the encryption software you use, legitimately there is no way to presume any seemingly random data is in fact encrypted data. At its core then is the question of whether the phone in question does in fact do such a thing or not.

Re:Spirit of the 5th amendment

[guruevi]

You can actually buy self-destructing safes, they're not illegal. You wouldn't be charged with obstruction as long as the documents were in there before the warrant was served. You could be charged with various other 'crimes' such as if you run a business and can't produce certain records, you may not be able to defend a tax or contract lawsuit that includes your requirement to produce said documents.

Re:Spirit of the 5th amendment

[Anonymous Coward]

The "it's encrypted so the bits don't philosophically exist" argument doesn't pass muster, sorry. You could say that about any stream of data, mathematically speaking. Or even programmatically speaking. ("This spreadsheet containing my drug cartel's finances is only such if you interpret the magnetic data in a certain way!") Unless the Feds are calculating hash collisions on you to plant evidence, it should be assumed that encrypted data is not data nullis until decrypted.

Wrong. You can make that claim about any stream of sufficiently random data. Encrypted volumes are indistinguishable from random data; therefore, in a very real sense, the unencrypted version of the data only exists in the mind of the person who knows the password. Conclusion: 5th amendment must apply to password-protected encrypted data.

Now if that password is written down inside a safe, and if they have a warrant for the contents of the safe...

Re:Spirit of the 5th amendment

[Anonymous Coward]

I think those are the types of comparisons that should be made when doing legal analysis on smartphone / computer storage devices (again, assuming the police have a judicially-approved warrant).

A smartphone / computer storage device is not a safe. A smartphone / computer storage device is the paper notebook inside the safe. A paper notebook with the words "jhybdg adkurgrbial asuilkg easlkiyhgizulhg asdelkg" written in it. And I am under no obligation to tell you what "jhybdg adkurgrbial asuilkg easlkiyhgizulhg asdelkg" says in English, or even to tell you if it is complete gibberish.

Re: Spirit of the 5th amendment

[Anonymous Coward]

And my password is I murdered . I will not finish it for you.

Re: Spirit of the 5th amendment

[Anonymous Coward]

The warrant itself is very telling here. They can get a warrant to crack the encryption on your phone. They can get a warrant to search your safe.

If there's something they can get a warrant for, it's something they believe could incriminate you therefore you cannot be compelled to produce it for them because that's violating your rights reserved by the 5th amendment. It really has nothing to do with whether the bits are encrypted or not. If they want evidence, they need a warrant and they need to do the work themselves.

Re: Spirit of the 5th amendment

[Anonymous Coward]

Suppose it was written long hand in a notebook.. one-time pad, memorized, no way of decrypting short of testimony. It physically exists in the sense of being written on a page as pencil or pen scratches. But beyond that...?

Re: Spirit of the 5th amendment

[nnull]

All I see is the rise of devices that shift passwords after a certain amount of time and permanently locks the device or wipes it after a certain amount of no activity. It's already becoming easy enough to do.

Re:Spirit of the 5th amendment

[rtb61]

Do you know what they are really trying to do, what the legal reality is. They are trying to make you legally liable, with prison sentence, for the proper functioning of your phone, if you phone fails, you go to jail. Think about that, they are talking say, ten years behind bars based upon the claimed crime if your phones password function fails. Hey, lets, hold the corporation and the executives equally liable, let them sign up to a decade in prison if the phone they make ever fail the password function. Rattle of any nonsense and how can they prove you are lying unless they already have the correct password, whether your fault or the phones fault, incorrect password, ten years behind bars, really, is that anyway fair or reasonable.

There was the other one as well, where you give the individual the correct password, they type it in and then change the password and say your password does not work and you are lying and ten years behind bars thank you very much.

Why the fuck should any citizen be held legally liable for the functioning of their phone, hell the phone could have been hacked between the last time the person used it, even when they were using and months latter in court, what is the password, 'Go Fuck Yourself', right ten years, no that is the password 'Go Fuck Yourself', doesn't work and well pissed off judge and you a now legally liable for the phone, and it's security for months since you used it. Obviously the only place that request should be made is in a court and it would need to be done publicly in front of the judge to ensure no tampering with the process and wow, the legal responsibility you now take for the functioning of that phone.

Re:Spirit of the 5th amendment

[bradley13]

IANAL, but I believe that the police can require you to produce a physical key, if one exists. So a key to your house, or your safe, or whatever. Obviously, they have the alternative of breaking in if you refuse, but they can also charge you with a crime for your refusal. However, as I understand it, they cannot force you to open a combination safe. And this seems like the obvious equivalent to a passcode on your phone. Again, IANAL.

It seems like the real answer should be: there should not be any legal requirement for you to cooperate with police. If they think they have a case against you, you should generally not have to participate in building that case. This includes the now infamous prohibition on lying to a federal officer - something the FBI regularly abuses in order to pile up more charges against people.

Re:Spirit of the 5th amendment

[Anonymous Coward]

Encrypted volumes are indistinguishable from random data; therefore, in a very real sense, the unencrypted version of the data only exists in the mind of the person who knows the password.

This is completely not true. It's a fairly simple function of some decidedly non-random data. Certainly statistical tools will be unable to distinguish between them but a statistical tool applied after using the correct algorithm will certainly distinguish between them.

But the law is simply not concerned with some abstract philosophical theories. The data exists in an encrypted form. All the law cares about is whether they have the right to that data and whether it's breaching your righs to force you to provide access to it.

Re:Spirit of the 5th amendment

[91degrees]

The law does not work that way!

If your phone is genuinely faulty, it will be up to the prosecution to prove beyond reasonable doubt that the phone is not faulty.

Re:Spirit of the 5th amendment

[Sique]

You could learn some quite exotic language and write everything down in that language. This would be a semantic encryption, as there is no purely syntactic way to get to the English equivalent of the text. Actually, the U.S. forces used a similar "encryption" in World War II for their radio-traffic: The radio operators were of the Navajo tribe and talked to each other in the Navajo language. Thus you had a real time encryption/decryption scheme absolutely unintelligible for someone not being able to talk Navajo, e.g. nearly everyone outside the U.S.. Even to recognize that it is Navajo would need a specialist not likely to find outside the U.S..

Re:Spirit of the 5th amendment

[Sique]

The people I was talking about are called Code talkers.

Re:Spirit of the 5th amendment

[Anonymous Coward]

I wonder if these cases are any different from being compelled to produce an accounting ledger or journal. Setting aside the "I don't know where it is argument", I think a judge is able to order you to produce evidence of this nature. Acknowledging that computers can house a lot more information than a simple notebook, if a warrant was issued indicating something specific on the device, such as a collection of photos around a certain date, would it not be in the best interest of justice to compel a witness to produce them? I agree that giving the government cart-blanch access is not good, but if the search is limited, and based on other corroborating evidence, then why not force the person to produce the password?

Re: Spirit of the 5th amendment

[Anonymous Coward]

I mean to me the worst part of this:

Girl goes to police because she was raped.

Police arrest girl for stalking.

Something just isnâ(TM)t right there, I mean how rich is the rapist?

Then they try to force her to decrypt the only evidence, which they already had access to once and could have tampered with.

Re:Spirit of the 5th amendment

[Xylantiel]

I think of the 5th amendment as a limitation on the use of force. Someone can be compelled in a humane way to provide their fingerprint and similar. However, compelling someone to say something is an entirely different thing and can easily become a punishment itself. This creates a situation where the state doesn't need to prove that someone committed a crime, just accuse them of something and put them in prison because they won't confess to it or provide the information needed to prove it. That is not how our legal system is supposed to work. (And in reality it is worse than this because torture, not just imprisonment, is often the thing used to coerce testimony.)

Re:Spirit of the 5th amendment

[Sigma 7]

Nothing is stopping the police from brute forcing the password.

Some phones, such as some older Blackberry models, do a factory reset if the password is misentered too many times. This prevents brute force in most circumstances, because extracting the data otherwise requires an expensive technology forensics lab.

They still have unlimited attempts once they copy the phone.

Re:Spirit of the 5th amendment

[Lab Rat Jason]

Agreed. I think the EFF is making a dangerous argument here... if they succeed, then anything the police decrypt by force(cracking code, not cracking skulls) will have been "created" when it was decrypted, therefore making it forensically invalid.

Re:Spirit of the 5th amendment

[Lab Rat Jason]

Obligatory: XKCD

Re:Spirit of the 5th amendment

[Anonymous Coward]

You can actually buy self-destructing safes

A quick google search shows that yes, one can "buy" a self-destructing safe in the same sense one can buy a combustible lemon- by making it yourself or paying someone else to make one.

Re: Spirit of the 5th amendment

[Anonymous Coward]

When I was kidnapped and raped, you are damn strait that I stalked the fuck out of my captor. It was literally the only thing on my mind so I could know if he was going to get me again. When I got away, an officer found me on the side of the road, took my statement and dropped me at the bus terminal. A couple weeks later (weeks!!!), the officer who found me went to investigate. When I called up to check on the status, he asked me to come in and I was charged with aggravated assault as I stabbed the fucker when trying to get away. The police are not on your side, ever. They are a profit seeking organization solely to benefit the state. The only way to see justice is if it is easy, looks good on their record, or if they hold a grudge against the other party.

Re:Spirit of the 5th amendment

[JesseMcDonald]

And what's wrong with that? There are codes which can be decrypted multiple ways, after all—the most famous being the one-time pad, which can be decrypted to any message of the same length simply by choosing the right pad. The burden should be on the police to prove that the plaintext they produced is the same plaintext originally encrypted by the suspect, and not just something invented by the police which happens to share the same ciphertext.

Re: Spirit of the 5th amendment

[Anonymous Coward]

"by making it yourself or paying someone else to make one"

Uh, that's how I get literally everything I use- I paid Apple to make this phone. Why would a safe be any different?

Re: Spirit of the 5th amendment

[Anonymous Coward]

Warrants handle the 4th amendment protection against unreasonable search and seizure, not the 5th amendment protection against compelled testimony.

Re:Spirit of the 5th amendment

[Anonymous Coward]

This is why we need phones and other devices to be a "black box" in the sense that there is no way to get the data without the pass-code...and the devices also need to have a duress code that permanently destroys all data on the device when the duress code is entered.

Re: Spirit of the 5th amendment

[Anonymous Coward]

Right and if police don't have a warrant, they also aren't allowed to compel you to produce what they are looking for yourself. And if they do have a warrant, they can get it themselves. Either way, the 5th protects you from having to do their work for them.

Re: Spirit of the 5th amendment

[Anonymous Coward]

What? No. It's called the "self-incrimination" clause, not the "don't do police work" clause.

A civil trial will use the power of the state to compel the litigants to produce what the other side is looking for. Why on earth would a criminal suspect enjoy a broader protection than that? You might be able to exclude the evidence from your criminal trial later based on a 5th amendment claim, but you're not stopping it being obtained in the first place by arguing you "don't have to do their work for them."

Perhaps I missed that gem of a legal term of art.

Re: Spirit of the 5th amendment

[Anonymous Coward]

Why are you being so obtuse? It's painfully obvious what the GP meant: Option 2 out of:

1: Make it yourself.
2: Commission a custom-built item
3: Buy a ready-made off-the-shelf item.

How about NO

[Anonymous Coward]

The case began when Katelin Eunjoo Seo reported to law enforcement outside of Indianapolis that she had been the victim of a rape and allowed a detective to examine her iPhone for evidence

Bullshit strawman.

Along with a search warrant, the state sought a court order to force Seo to unlock her phone. Seo refused,

That, is what this is about. The state was ALREADY had a warrant issued without discovery of the phone contents. This is so much a fuckin clear case of FISHING it's sickening. What they WANT is parallel construction and it should have been thrown out on it's ass along with the judge who signed off on it..

Re: How about NO

[Anonymous Coward]

I would like to see the police holding her finger and making it move across the surface of the phone

Re: How about NO

[Anonymous Coward]

Um - she reported it. How is the state fishing for parallel construction exactly? The state is trying to verify what she reported.

Re: How about NO

[Anonymous Coward]

if they have accessed certain information already, illegally.

It would be like if your neighbor borrowed your lawn mower and didn't return it; but, he said he gave it back to you. So you break into his garage when he's at work and find YOUR lawnmower in there; but, you made an unlawful entry to do so. So, now, you are there waiting, every time he gets home, for him to open his garage so you can, 'casually', notice that he did not in fact return the lawnmower, so as to make it appear as though you were just discovering it in public view and demand your lawnmower back. It would probably drive you nuts if he kept using the front door and never opened the garage...

This is why all garage doors should be open all the time...

So Jim can get his damn lawnmower back..

Re: How about NO

[Anonymous Coward]

Except that, in this case, Jim says, well unless you can prove you returned it to me, a judge is going to keep you on the hook for damages, because I got witnesses you borrowed it in the first place.

Same thing as now. No password? On the hook for damages.

"I can't recall my password."

[Black Diamond]

If I was ever in a situation like this where I was asked to decrypt my phone, I would let the police know that I no longer remember my password. Then when/if I ever receive my phone back, I'd do a complete factory reset on it without entering the password.

Re: "I can't recall my password."

[Type44Q]

I'd do a complete factory reset on it without entering the password.

Methinks you might have to enter the password at some point to unlock the bootloader...

Re:"I can't recall my password."

[Anonymous Coward]

I no longer remember my password

I'm sorry sir, but perhaps you will remember after 6 months in jail for contempt of court.

No? Well perhaps a year will jog your memory. Or 5.

We can wait.

Re: "I can't recall my password."

[Z00L00K]

After a while I can't remember passwords I have used a few months back.

Re: "I can't recall my password."

[Black Diamond]

You don't have to unlock the phone. Depending on the phone you probably have to enter your icloud or google account credentials in order to reset it, but that doesn't unlock the phone, just allows you to wipe it.

Re:"I can't recall my password."

[GodfatherofSoul]

And subject yourself to a perjury or obstruction charge?

Re: "I can't recall my password."

[nnull]

As I posted on a comment before, this is just going to give rise to more devices that will lock out completely or wipe their devices after a period of inactivity.

Re: "I can't recall my password."

[Anonymous Coward]

I'd do a complete factory reset on it without entering the password.

Methinks you might have to enter the password at some point to unlock the bootloader...

You can wipe all the partitions from android recovery without decrypting anything.
I don't know anything about iOS, but I imagine it's much more limiting.

Re:"I can't recall my password."

[gnasher719]

If I was ever in a situation like this where I was asked to decrypt my phone, I would let the police know that I no longer remember my password. Then when/if I ever receive my phone back, I'd do a complete factory reset on it without entering the password.

I think on an iPhone you can do make the phone unusable (just enter the wrong passcode 12 times), but you can't make the phone usable again without knowing your Appleid and passcode. Obviously to make it much less useful for thieves. Unfortunately when you buy an iPhone on eBay and the idiot seller didn't reset the phone properly there's a problem.

Re:"I can't recall my password."

[Anonymous Coward]

This. Don't say anything at all.

Re:"I can't recall my password."

[Anonymous Coward]

And subject yourself to a perjury or obstruction charge?

Sure. The prison term for that, is shorter than the term for x tons of cocaine or knowing where some bodies are buried.

Re:"I can't recall my password."

[Anonymous Coward]

Sad thing is people do forget, I have a server that I have no idea what the root password is, it is working fine, been running for years, when I went to do routine updates on it (a year or so ago) I found out that I had no clue what the password was and I was using an ssh key to get into the regular user account so I can't even sudo to root. It happens if it's not something you use regularily you forget. Granted most people use their phone a lot, but I'm guessing most have it in quick unlock mode most of the time so it is likely that they could forget.

Re:"I can't recall my password."

[Anonymous Coward]

The courts also concluded that it was a "foregone conclusion" that kid porn was on the drives because a forensic examination revealed that the "hash" values of the files have been linked by the authorities to known child pornography.

Wait, what? Do I not understand how encryption and hashes work?

Sure

[PPH]

Here's the password.

Uhh. Do you mind if I crouch down behind a heavy piece of furniture before you enter that?

This means nothing

[jwhyche]

It doesn't matter which way this goes it means nothing outside of Indiana. The FBI can still work you over till you crack. They will just hand it over to the federal government if they can't get you to unlock it. Then it doesn't matter what a Indiana court says.

This needs to go to the Supreme Court so this can be dealt with once and for all. But the way the current court is stacked I'm not betting it would go the way it should go.

Re:This means nothing

[aitikin]

(Standard Slashdot style disclaimer, IANAL, I have taken a few law classes and am intrigued by how our system works/is manipulated) You're clearly not familiar with the US "Common Law" court system. Precedent exists and other courts will consider the precedent of another state even if it doesn't have jurisdiction over the case as a general rule of thumb. Hell, there have been cases in the US where the precedent of the UK court system has been considered. Stare decisis is a thing and something that one must be aware of.

Re:This means nothing

[jwhyche]

What you have is a view on how the law is supposed to work. Not how it actually works today. The worse administration in history, the one before the current, made it common practice to try to bring federal charges up when things didn't go the PC way in state court.

Re:This means nothing

[DNS-and-BIND]

The court is not "stacked". The justices have all been legitimately appointed. Stacking is how the current majority will be removed after a Democrat gets back into power in 2021. Appointing two new justices to bring the court to 11 total will restore the balance and ensure the alt-right never sees its dream come true.

Re:This means nothing

[Anonymous Coward]

BULLSHIT it doesn't mean anything....
HERE'S what the fuck it means...

Your phone is an extension of your mind.

Some peoples minds are bigger better more capable of storing and recall than others.
Thus some people *need* that crypted phone as an equivalent of the sealed brain of those smarter than them.
To force unlock is to unfairly persecute and take advantage of those lesser capable peoples.

Humans are also simply evolving to use encrypted digital storage as said extension.
We did not cut the legs off neanderthals when they evolved to walk upright.
So we DO NOT cut our evolution to use crypto extensions.

Furthermore, when humans start surgically grafting in bio-electronic brain encrypted neural processor hardware, going 100x on existing i/o paths and storage, forcing unlock there could kill them both from lobotomy and infection.

All three situations are unethical and untenable and frankly unconscionable.

YOU MUST ALWAYS RETAIN THE RIGHT TO WHAT IS IN YOUR BRAIN !!!
*** NO *** LEGAL ARGUMENT OR CASE IS EVER WORTH GIVING THAT RIGHT AWAY.

The RIGHT to not be forcibly brain scanned and dumped is the COST we MUST and DO agree to pay.

Else humans will become just boring clones... no diversity, no language, no art, no love, no identity.
Just a fucking bowl of mush.

FUCK THAT.
So fight these stupid poilticians, these fucking cops, these jackass prosecutors, and fucked up courts.
Keep your secrets and take them to the grave.
And your phone along with you.

Re:This means nothing

[dryeo]

Does it matter when it comes to State courts considering other State courts precedent what the Federal government has done in unrelated cases?

Re:This means nothing

[Anonymous Coward]

lol @ worse

Re:This means nothing

[jwhyche]

Don't you love it how when one certain political party that lost a certain election int 2016 thinks that they can change the rules. Let us be clear, here are some things that are not going to happen.

The Electoral College is not going any where, period.

There are NEVER going to be more than 9 justices on the supreme court, period.

Trump is not going to be impeached and removed from office, period.

You lost the election in 2016, you are not going to change the rules because you don't like them. Just to make sure we understand one more thing. You are not going to win in 2020 ether. So get over it and try to do better next time.

Re:This means nothing

[Anonymous Coward]

"The Electoral College is not going any where, period."

Probably. It's horribly complex and ingrained. And republicans have a vested interest as the stacked system favors them, especially as they have gerrymandered to hell many states.

"There are NEVER going to be more than 9 justices on the supreme court, period."

It's happened 7 times before in fact, and is much easier than removing sitting judges. Could totally see this happening. Especially given how the right was cleaned out in Congress.

"Trump is not going to be impeached and removed from office, period."

Obviously. You still need the Senate for that, and the republicans there have given up.

"you are not going to change the rules because you don't like them"

Actually, that's how Democracy works. You don't like something, so you change it, or try to, and then try and convince others to support you.

It's also how amendments to the constitution work.

And hey, it's worked for republicans.

The Dems latest plans to tax the hell out of the rich and medicare for all (I mean, who would argue against that except the rich?) plus the MASSIVE tax cuts just handed away to the rich by trump is going to be a disaster for him and the right next election.

That's the easy part. The hard part is having a person who can sell it. They need a figurehead - and it's not Hillary.

Biden? Ehh, I mean he's your nice grandpa but too old. Sorry but it's true. Although he a safe white guy - White people love that shit.

AoC? Too new and untested but she has ladyballs I'll give her that. Maybe in the Future. Also, she's brown and a women - the GOP will hate her.

Biden? Definite possibility. He's boring, safe, white - all good things for a politician. And bro's with Obama. He's like Bill Clinton sort of too, just with the sleaze taken out.

Plus his war hero kid died recently, and trump shat on that. People will lap that up in sympathy against donnie bonespurs.

That's the thing for the Dems. They don't need someone amazing. Just safe and dull. Trump will implode himself just fine.

That was the problem last time. Trump was a disaster, but hillary was so unlikable they still picked that orange headed moron.

Re:This means nothing

[Anonymous Coward]

The problem isn't that he won, it's that he's a shitty President.

Re:This means nothing

[drinkypoo]

"Obviously. You still need the Senate for that, and the republicans there have given up."

You misspelled complicit there

Re:This means nothing

[Anonymous Coward]

You're talking about the Obama Presidency. It's funny you say that when it was the Bush Presidency that worked for, and got, permission to lock up people deemed (under the vaguest of legal definitions) terrorists. They're the ones that created "no fly" lists and utilized "watch lists". They're the ones who worked with private ISPs to illegally spy on all Americans. But yeah, no, BLACK MAN BAD, that works too. Stupid fuck.

Re:This means nothing

[currently_awake]

If the progressives (left wing Democrats) keep pushing they could force an independent goverment department to handle districting and voter lists and handling elections. This would prevent Republicans and centralist Democrats from rigging the elections to favour the Rich White Men that currently run America.

Re:This means nothing

[thegarbz]

The Electoral College is not going any where, period.

There are NEVER going to be more than 9 justices on the supreme court, period.

Trump is not going to be impeached and removed from office, period.

One of these is not like the other. And the fact you state it with "period" means that you have abandoned the concept of rule of law. Or maybe you believe that congress has abandoned that concept. Heck no one in the history of impeachments has thought it likely for a president to be impeached before some charges were actually brought against them.

Re:This means nothing

[AmiMoJo]

The Republicans refused to even hold hearings for Obama's SC candidate. He could have just appointed them anyway, after all if the Republicans aren't going to pay any attention to constitutional norms why should he? But he didn't, he took the moral high road and tweeted about it now and then.

It really is time that you reformed the SC. Limited terms for justices at the very least, and a much more robust vetting process.

Re:This means nothing

[rwyoder]

There are NEVER going to be more than 9 justices on the supreme court, period.

The size of SCOTUS is determined by Congress, not the Constitution.
It has been as small as 7, and as large as 10 (from 1883-1886).

Re:This means nothing

[Penguinisto]

Correct, which is why FDR's plan to pack the court in 1937 failed (because Congress tossed his proposal into committee and left it to it die there.)

Re:This means nothing

[Penguinisto]

Obama could have simply appointed Garland to sit on the USSC, but it would have been temporary, and Mr. Garland would have been removed the say that the Senate reconvened in 2017. Constitution says the Senate has to advise and consent, and without that, any appointment by the executive is temporary at best.

Also, note that Garland was nominated in the beginning of election season (which started in Jan. 2016 with the Iowa Caucus), so the Senate was well within its rights to postpone confirmation until whoever won in November 2016 took office. What the Senate did was perfectly constitutional, actually made sense, and even in retrospect, was completely non-partisan - remember, nobody knew at the time who would win in 2016.

PS: The vetting process is intentionally vague outside of what was written, because due to time and social/political/technological evolution, 230+ years later, anything specific then would be way obsolete by now. Same story in the future if we set one now.

I do agree on limited terms, though I suspect that many on the leftward side of the ideological spectrum would be screaming against it now, considering Justice Bader-Ginsberg's advanced age, health issues, occasional narcolepsy at events (and rumor says on the bench), etc.

Re:This means nothing

[Anonymous Coward]

The Republicans refused to even hold hearings for Obama's SC candidate. He could have just appointed them anyway, after all if the Republicans aren't going to pay any attention to constitutional norms why should he?

He could have "appointed him anyway," the legitimate Supreme Court justices would not have stood for it. The process worked as it is prescribed in the Constitution. The Constitution requires the consent of the Senate for any member of the Supreme Court. The Senate did not consent to Merrick Garland. There are no restrictions on the Senate as to the nature of their failure to consent.

Re:This means nothing

[cayenne8]

"The Electoral College is not going any where, period."

Probably. It's horribly complex and ingrained. "

Well, it is there for a very GOOD reason. Remember this is the United STATES of America. States rights, eh?

This is there to give ALL states a more proportional ability to choose the president. If it weren't there, you'd have basically 2-3 massive states deciding for the rest of the states, and that is not fair. This is a vast country and a state like MO has vastly different concerns than CA, and the electoral college is there to help balance things a bit on the state level.

The Dems latest plans to tax the hell out of the rich and medicare for all (I mean, who would argue against that except the rich?) plus the MASSIVE tax cuts just handed away to the rich by trump is going to be a disaster for him and the right next election.

There are some troubles for you on this one. First, what is the definition of 'rich'? $250K/yr? $150K/yr?

And, even if you drop the definitions of rich to those levels, you can't get enough money to fund medicare for all, and people realize this just isn't something the US can afford.

And the ultra-rich, well, if you start trying to tax them at 90%, which would still not pay for 'free education and medical for everyone)....those folks can afford to move out of the US to escape it. That just leads the upper middle class to pay it all, and that isn't fair, it will just decimate the middle class even more.

Re:This means nothing

[desdinova 216]

you say that like it would be a bad thing, If this was a South American, African, or Asian country where the people with a vested interest in the results of an election making the districts or rules for elections there would be an investigation within days.

Re:This means nothing

[Anonymous Coward]

And, even if you drop the definitions of rich to those levels, you can't get enough money to fund medicare for all, and people realize this just isn't something the US can afford

The US cannot afford medicare for all?
How much would it cost?
How much more than what is already paid in health insurance by corporations and individuals?
If you don't know, how do you know it is not affordable?

Bonus question:
How come poor countries can afford it but the US can't?

Re:This means nothing

[Anonymous Coward]

If the size is altered for political reasons, then I foresee a distant future where all eligible voters are added as members of the Supreme Court, and have representatives to rule for them.
"Why add only two justices when we can add four and make our side bigger?"
In four years...
"Now we need to add four!"
etc.

Re:This means nothing

[cayenne8]

Bonus question:

How come poor countries can afford it but the US can't?

Even in NON-poor countries, they are having trouble keeping up healthcare for all and the costs are starting to weigh in heavily.

Healthcare problems in the UK

Canada isn't that much better than US

Re:This means nothing

[Anonymous Coward]

.... BLACK MAN BAD, that works too ....

That's racist.

Re:This means nothing

[Anonymous Coward]

What the Senate did was perfectly constitutional, actually made sense, and even in retrospect, was completely non-partisan - remember, nobody knew at the time who would win in 2016.

Perfectly constitutional, yes, made sense and completely non-partisan, no.

What you're leaving out is that a 9th Justice would have made a legal difference immediately, not only in terms of the cases selected for the docket but also in terms of the 4-4 splits that left lower court decisions in place. But hey, maybe you do think it makes sense to have the Senate- a national body, after all- through inaction ensure that the law is randomly different in different areas of the country. Some of these issues may literally never be fixed- if you're in Memphis, you're vulnerable to gender discrimination on your spouse's loan application, but in West Memphis, you're not.

The value of law is its predictability and its general acceptance, not some particular ideological outcome. Republicans may have acted constitutionally, but they sure as hell damaged the rule of law itself. Which is also perfectly consistent with their partisan values- 'drown it in a bathtub' etc.

Re:This means nothing

[Anonymous Coward]

Bonus question: How come poor countries can afford it but the US can't?

Because the US presently funds most of the medical R&D for the world. Take that away and no one funds it, or everyone has to start funding it.

Re:This means nothing

[jwhyche]

You keep saying that. It's like if you keep saying it, it will be true. Silly democrats. Reality is a good place, you should try it some times.

Re:This means nothing

[jwhyche]

The Dems latest plans to tax the hell out of the rich and medicare for all (I mean, who would argue against that except the rich?) plus the MASSIVE tax cuts just handed away to the rich by trump is going to be a disaster for him and the right next election.

I would argue against it and I'm not rich. See I know what happens in a free society when you "tax the hell out of the rich." They take their money and put it in banks outside the country. You know, where they can't be taxed the hell out of. That is exactly what happened under the worse president in history. The one before Trump. He tried to tax the hell out of the rich and what happened? All the money and jobs went over seas where it was taxed less. You see, the rich don't have piles of money laying in big building where the jump off diving boards into. They have it rolled into companies and invested. When you tax the hell out of it they just take it overseas. An that is exactly what happened under obama.

When Trump came in, even before then, he was promising to reduce the tax rate and look what happened. All the rich, and companies, brought their money home and started investing again. An what do we have now? The lowest unemployment rate in decades. A booming economy. I'm not rich and for the last two years I actually got a tax refund. This years was almost double what last years was.

You people need to stop believing bullshit Ocasio-Cortez is peddling. She is a god damn dingbat and she doesn't have a clue what she is talking about.

Re:This means nothing

[jwhyche]

Bonus question: How come poor countries can afford it but the US can't?

Question back. How come in these poor countries where they have free healthcare, when they need something done to save their ass, they come to the US? When the rich and power need a heart or cancer treatment, they come to the US. What is wrong with the free health care in their country? Why is it when a child need a life saving operation a charity bring them to the US? If the healthcare is so good back home, why come to the US?

Re:This means nothing

[Anonymous Coward]

But yeah, no, BLACK MAN BAD, that works too. Stupid fuck.

Yes you are a stupid fuck. Trying to make something about race makes you the biggest stupid fuck of them all.

"Whine whine I dont' like what you say. That is racist. Whine Whine Whine"

You are to god damn stupid to have a counter argument so you pull out the race card. That doesn't make you win. It makes you look like a fucking idiot, which you are, and a god damn loser. Which you are.

New rule. When a god damn idiot pulls out the race card, the discussion is over and they lose.

Re:This means nothing

[jwhyche]

It really is time that you reformed the SC. Limited terms for justices at the very least, and a much more robust vetting process.

No it isn't. It works just fine the way it is. The vetting process works just fine. It worked great with the last nomination and it will work with Trumps next pick just as well. We don't need limits on the justices because job security is one of the reasons they can be impartial as they are.

Fifth Amendment privilege? That sucks!

[fustakrakich]

Guess all our rights are privileges now.

Re:Fifth Amendment privilege? That sucks!

[Anonymous Coward]

for some reason anything regarding protecting the 4th or 5th ammendment is regarded as being "liberal hippie snowflake"?

Re:Fifth Amendment privilege? That sucks!

[Anonymous Coward]

The Second is sure as hell a privilege according to the jackasses in charge these days...

Wasn't this a Dilbert cartoon?

[stevent1965]

I'm pretty sure there exists a Dilbert cartoon where Wally is being accused of using his computer to look at porn and one of his "defenses" is that, technically, it's all just ones and zeros until the computer is turned on?

Not important

[Anonymous Coward]

They need to clear up the problem of people shitting in streets first. I couldn't imagine what that country smells like.

Re: Not important

[Anonymous Coward]

Indiana

Re: Not important

[aitikin]

To be fair, Gary does smell something awful...

Re: Not important

[Anonymous Coward]

To be fair, one doesn't willingly enter Gary.

Shroedinger’s Files?

[R3d M3rcury]

In a very real sense, the files do not exist on the phone in any meaningful way until the passcode is entered [...]

One could argue that, at the quantum level, the files both exist and do not exist and it is the action of unlocking the phone that causes the files to exist.

Or not. I know nothing of quantum mechanics...

Re:Shroedinger’s Files?

[Darinbob]

Your honor, we find the defendant both guilty and not guilty.

Get a psychologist if you want my password

[Anonymous Coward]

I can't remember passwords when I'm in a stressful and emotional state.

Re:Get a psychologist if you want my password

[Anonymous Coward]

I can't remember 4-digit PINs unless I am standing in front of the exact terminal that I use them at. Example, unless I am in front of a bank ATM, I don't remember what my ATM PIN is.

I occasionally have brain-farts regarding a password that I have used at least once every day for the past 10 years.

Human memory is a fickle thing.

But don't get me wrong, I'm not saying that everyone who says "I forgot" is telling the truth. I'm just saying that it is impossible to prove someone is lying.

Hopefully the court won't buy these arguments

[MikeRT]

"In a very real sense, the files do not exist on the phone in any meaningful way until the passcode is entered and the files sought are decrypted. . . . Because compelling Seo to unlock her phone compels her to literally recreate the information the State is seeking

File compression does the same thing if you hold to this reasoning. In fact, you could argue that this is almost a philosophical gap between machine vs human-readable content.

it would rely on Seo's mental knowledge of the passcode and require her to implicitly acknowledge other information such as the fact that it was under her possession and control.

If they have a witness showing her unlocking the phone, they've established that it's her phone. If they have even purchase records showing that she paid for a plan tied to the IMEI code and made frequent use of it, they've established that she is the owner and a reasonable person would assume she knows how to aid a valid warrant service on her phone.

Re:Hopefully the court won't buy these arguments

[Anonymous Coward]

File compression does the same thing if you hold to this reasoning. In fact, you could argue that this is almost a philosophical gap between machine vs human-readable content.

No, it doesn't do the same thing. A compressed file is still machine readable, you simply require the algorithm - which is no secret - to decompress it. No passcode is required. Think of it like shorthand, it is neither obfuscated nor encrypted, merely condensed.

reasonable person would assume she knows how to aid a valid warrant service on her phone

See, that's the thing, EFF and ACLU are arguing that you cannot issue a valid warrant requesting the defendant unlock/decrypt the phone as the fifth amendment protects citizens against self-incrimination.

Re:Hopefully the court won't buy these arguments

[Anonymous Coward]

The content is not machine-readable when encrypted without a passcode, but IS machine-readable when compressed without a passcode. Those are quite different.

Re:Hopefully the court won't buy these arguments

[thegarbz]

File compression does the same thing

Not true. File compression is self sustaining and very much not encrypted in any way. The contents of the file can be restored with information from the archive itself. That is quite different to something requiring an independent decryption key.

What if you are forgetful?

[DuncanE]

Ok your honor the pass code is 1234. Or maybe 4321? No wait its 1111! Sorry you had my phone away from me for too long and I usually type it using muscle memory and its gone now. Lets just reset it back to factory settings and I can set up a new code for you ;-)

Re:What if you are forgetful?

[Anonymous Coward]

20 years for destroying evidence. There is no winning.

Re:What if you are forgetful?

[Anonymous Coward]

But they have to prove there was evidence on there to charge you.

GOVERNMENT HAS RIGHT & AUTHORITY!!!

[Anonymous Coward]

Any government has the right (& legal authority) to do physical search on people & their belongings/properties, or not?
& if physical search is okay, then why digital data search is not okay?

Is government searching people for no good reason(s)?
Or, they are just trying to serve & protect common good of the general public?

When government (police/FBI) is unable to unlock the phone/computer of even a well known/proven criminal/terrorist,
(to gather more evidence, to learn about any possible affiliates, etc),
is that really good or bad, for to serve & protect common good of the general public?

So, IMHO, governments (police/FBI) should/must have the right to force anyone to unlock their phones/computers!!!

&, also, IMHO, any private companies producing phones/computers, which designed to be impossible to unlock, even by government (police/FBI),
are actually helping criminals/terrorists, & so doing a huge disservice to common good of the general public!!!

Re: GOVERNMENT HAS RIGHT & AUTHORITY!!!

[Anonymous Coward]

No you're wrong

How do they "force" you to unlock your phone?

[mark-t]

They can put you behind bars, but that doesn't guarantee unlocking the phone... While not everyone might be resistant to the point of even going to jail, if they cannot get what they want by threatening punishment, what good does the punishment even do?

Further, I can imagine a futuristic type of lock existing someday that would not unlock under any circumstances when its designated owner is compromised, perhaps to keep trade secrets secure... Being arrested and compelled to unlock your phone could be interpteted by such a system as such a comprise, and there would be absolutely no way to force the person to unlock it, even if they wanted to at that point.

Re:How do they "force" you to unlock your phone?

[Anonymous Coward]

Almost like a time-lock safe. The intent is to prevent someone opening it at gunpoint.

When you're dealing with the police then everything is done at gunpoint. Sure, they don't brandish the gun until you start saying "no" but the process is exactly the same. It's a more civilized form of mugging.

Re: How do they "force" you to unlock your phone?

[Anonymous Coward]

Oh I can't wait for that implementation. Based on stress, pulse and facial recognition ?

Bad day at work 99% of the time, made worse not getting into phone. To protect from the .00001% of the time you're unlocking under duress.

Re: How do they "force" you to unlock your phone?

[Anonymous Coward]

Oh I can't wait for that implementation. Based on stress, pulse and facial recognition ?

Bad day at work 99% of the time, made worse not getting into phone. To protect from the .00001% of the time you're unlocking under duress.

No dipshit. Ye olde BOFH security with some modern tech. Geofencing plus a cron job. User not where they were scheduled to be plus margin of error upon checking their calendar executes deletion of keys on the AAA server stored in Russia.

Done. Info is lost forever.

Couple more steps could make the denial temporary. Based on official legal filings for instance. They can't have you arrested or charged or a warrant in play and have you unlock the device at the same time.

Re: How do they "force" you to unlock your phone?

[Anonymous Coward]

Implement based on 36 (or N) hour absence.

Instead of timelock it sends to a random recipient, with instructions to not approach you until "normal conditions resume".

1) Accidental triggers easily fixed
2) Can honestly claim "I don't know who has the key"
3) Cannot be accused of willful defiance
4) Cannot be forced to furnish key (as in functionally not possible) whether by $5 wrench or a government pounding the table like a spoiled Donnie

Re:How do they "force" you to unlock your phone?

[f3rret]

The legal term is "compel" not "force".
It basically amounts to: "Do this thing or face legal trouble".

Re:How do they "force" you to unlock your phone?

[currently_awake]

If the goal of the police is to lock you up, then they win.

Re:How do they "force" you to unlock your phone?

[mark-t]

It's the same general idea, yeah... in theory, if the would-be coercer is aware that the lock exists, they will have to reconsider trying at all, because they know it will not achieve the desired result.

Re:How do they "force" you to unlock your phone?

[Anonymous Coward]

They can put you behind bars, but that doesn't guarantee unlocking the phone... While not everyone might be resistant to the point of even going to jail, if they cannot get what they want by threatening punishment, what good does the punishment even do?

It shows to potential next, similar cases that yes, they are being serious when they threaten you with jail. Plus it pads their conviction statistics. Win-win.

Re:How do they "force" you to unlock your phone?

[mark-t]

That's assuming that is the goal... why would they have that goal without evidence?

And if they don't care about evidence, then they can lock you up anyways by simply manufacturing a crime that you never committed at all.

Re:How do they "force" you to unlock your phone?

[Anonymous Coward]

Sorry to say, I don't remember the case to give a citation, but...

There was a case a while back where a man successfully hid his financial assets to avoid his legal obligations in divorce court. He was held on contempt of court for 20 years (IIRC) before the judge finally let him go.

You are correct: you cannot be forced to divulge, but you can be imprisoned indefinitely. I assume the judge finally gave in because incarceration costs money. In a social sense I guess the guy "paid" for the "privilege" of screwing his wife over by giving up his freedom for twenty years.

Re:How do they "force" you to unlock your phone?

[mark-t]

But they don't unlock the phone. Which apparently is their *stated* goal.

And in fact, if or when the tech exists to implement and advanced intelligent lock system that behaves as I described above, locking people up for not unlocking their devices wouldn't accomplish anything, so they might as well not do it when they don't have any other evidence that a crime which merits imprisonment was actually committed.

And if they have other evidence, then why can't they can convict on that? Compelling you to unlock a phone under threat of arrest is a fishing expedition, nothing more and nothing less.

And if their goal is to just lock up anyone who doesn't just do everything that they say, even if they haven't actually done anything wrong, well then.... we know what kind of state that is.

Re:How do they "force" you to unlock your phone?

[mark-t]

Well, I'm imagining that the guy only hid his assets *after* he realized he was getting a divorce, whereas what I'm talking about is when people might utilize such technology even if they haven't done anything wrong, but simply wish to ensure that the information remain secret.

Can you be arrested for wanting to comply with law enforcement but not being able to because of a decision that you made long before to use a securing technology that would lock you out in the event you are compromised just because you didn't necessarily anticipate that you would get arrested?

Re:How do they "force" you to unlock your phone?

[MooseTick]

Android and iPhones could easily employ a mechanism that wipes a phone that isn't logged into in 7/30/365/whatever days. That would also mean the state could only hold you in contempt for a limited period. Now, they could try to get you for destruction of evidence after the fact, but that is a whole different can of worms.

But accurate nevertheless

[Anonymous Coward]

Cartoon or not, it's completely accurate to state that the cleartext data does not exist when it is encrypted.

The data being sought is a pattern of information, and that pattern no longer exists. The person applying an appropriate decryption passphrase is truly bringing the cleartext information pattern into existence by an act of transformation from an entirely different pattern. The passphrase isn't a lock to a strongbox that contains the cleartext information inside it --- that's just an analogy for the non-technical public, not an accurate description of the process.

Nor is it some kind of semi-mystical quantum situation where the cleartext information both exists and does not exist at the same time.

Re:But accurate nevertheless

[Anonymous Coward]

No it isn't accurate, you're an idiot.

It's very clear that the data has still been laid down in a form that is retrievable, and "exists". Similarly a written plot to murder someone still exists if you write it in pig Latin.

Alternate code to erase

[Anonymous Coward]

I'd like my phone to have a secondary code that causes it to erase all data on the phone.

Re:Alternate code to erase

[Anonymous Coward]

No no no, that's automatic destruction of evidence, and contempt of court. What you want is a dummy profile - one that doesn't retain call/text/web history and has a few 'safe' phone numbers in it.

Now that you mention it, why doesn't the the prosecution probably already have the call/text/web history? Why do they need her to unlock the phone? If she was harassing the guy like they say, can't the phone company pull her call/text history?
Hmm. I wonder if she was using one of those Internet based VOIP number to do this? Even so, it should be traceable back to her IP address and ultimately, her phone.

Re:Alternate code to erase

[Anonymous Coward]

Of course they already have all the data that they need. They only want to be able to unlock the phone cuz they want to unlock the phone. They have no expectation of recovering any relevant information that they do not already have.

Re:Alternate code to erase

[sjames]

It must have malfunctioned!

Re:Alternate code to erase

[Anonymous Coward]

This. They just want the precedent.

Re:Alternate code to erase

[thegarbz]

Oh good. Not one but 2 counts of contempt of court. Such a stupid lie won't get you very far.

Re:Alternate code to erase

[Anonymous Coward]

If she was on a cellular network connecting to VOIP, her IP address changed several times likely. Besides, IP addresses do not equal a single person.

Re:Alternate code to erase

[Anonymous Coward]

That's fine. All you are erasing is the backup. You think they would let you alter the original? Naive. :)

Re:Alternate code to erase

[sjames]

Prove it didn't, forget the whole thing, or admit the Constitution has been shredded.

Re:Alternate code to erase

[Anonymous Coward]

People have been held in contempt of court for forgetting a password not used in over a year.

Contempt of court is based on the judges belief, not on any evidence.

You could say the sky is blue when the judge is colorblind and end up in the slammer.

Re:Alternate code to erase

[desdinova 216]

because the way they have the information is inadmissible in court so they're trying parallel construction?

Re:Alternate code to erase

[thegarbz]

Prove it didn't

No need. It's up there with the "I forgot" cases. The amazing coincident that something magically happens to evidence by pure unlucky malfunction is beyond any reasonable doubt of malfunction.

or admit the Constitution has been shredded.

The constitution says nothing about defending your acts of god during a legal case. When it all comes down to it in criminal activity your high and mighty constitution combined with your incalculable lucky break just fails to meet any requirements of reasonable doubt.

Sorry mate, but when you look guilty AF you will ultimately be treated as such.

Re:Alternate code to erase

[sjames]

Innocent until proven guilty. Fortunate and unfortunate coincidence does happen all the time. Long chains of fortune may strain credulity, but single coincidences are not only common, but a lack of them would strain credulity.

Take any disaster in history and you will probably find a number of people who survived because their alarm didn't go off or the car wouldn;'t start or they couldn't find their keycard, etc. On the other side, there are people who mis-dial and accidentally set up a drug buy with a cop or who butt dial 911 while committing a crime.

The thing about "I forgot" is that people do forget. Spend 1 day at an IT help desk and you will know for a fact that people forget important passwords all the time. The more pressure there is to remember, the less likely remembering is.

Given that and your response, I'll check the shredder for the Constitution. It's in there somewhere.

Re:Alternate code to erase

[thegarbz]

Innocent until proven guilty.

No. Innocent until thought guilty beyond reasonable doubt. Catch phrases won't get you far in the legal system.

Re:Alternate code to erase

[sjames]

And that's because the Constitution is in the shredder.

Re:Alternate code to erase

[Anonymous Coward]

"The amazing coincident"

Coincidence you moron.

"your high and mighty constitution"

Identify yourself as an agent of a non constitutional power much you moron?

"The constitution says nothing about defending your acts of god during a legal case"

I wouldn't expect some despicable foreign animal attacking civil societies to understand, but the rest of us already know that the constitution defends actions and events even if some backwards vile animal such as yourself refers to those things and constitutions with contempt.

"Sorry mate"

This is a US issue so you should reserve "mate" for when you are polonium trolling the other country....moron.

Re:Alternate code to erase

[thegarbz]

You should read the constitution. You'll find that it has nothing to do with anything being discussed here. Not free speech, not self incrimination, and not being innocent until proven guilty.

But you're on a role for not knowing the legal system of your country.

Re:Alternate code to erase

[sjames]

Apparently you don't. I am well aware that a great deal of sophistry has grown up around violations of the Constitution. I simply don't buy in to it.

You've painted yourself into a corner and so you are now left with only bald assertions and misquotes of the law. For some odd reason you are supporting imprisoning someone based on no evidence whatsoever and with no jury in sight.

You claim that forgetting and malfunctions are so unlikely as to be beyond reasonable doubt. I pointed out that people do forget all the time, and malfunctions at particularly good and particularly bad times happen all the time. So you switched to bald claims that I don't know the law.

The problem you're having is the root sophistry that somehow disclosing a password doesn't constitute testimony and so compelled disclosure isn't a violation of the Bill of rights. It's a non-starter.

The rest is just Rube Goldberg like workarounds in the same spirit as the crazy elaborate purported perpetual motion machines ("let's see if you can find the fundamental violation of the laws of physics NOW").

Plausible Deniability Solves This Problem

[Anonymous Coward]

If all the government has to do to get you to unlock your phone is to show you know the password, it would have immense leverage to do so in any case where it encounters encryption

This is a problem that has already been solved in open source encryption software. The solution is to store the encrypted partition within the free space of an existing partition, which may be either itself encrypted or unencrypted. The existence of such a hidden encrypted partition can neither be proved nor disproved unless the encryption key to the hidden partition is entered, either to use the hidden encrypted partition or to protect it from damage during normal file system operations which might otherwise overwrite portions of the "free space" which are actually part of the hidden encrypted partition.

As I understand it...

[f3rret]

There are already several cases where you can be compelled to to divulge your passwords or crypto keys:

https://www.youtube.com/watch?...

The court may use her actions against her

[Anonymous Coward]

The court does not need to blow a huge hole in the 5th. She opened the door by previously unlocking the phone to show material to the police.
The court can use this virtual foot in the door to allow the police back in. It is not like the person maintaining privacy of the phone at all times and then resisting opening it. She opened it for them to show them what she wanted to. For the police to ask to follow up on that is not really a 5th amendment violation.
For the EFF to fight this as an all or nothing on the 5th would be a bad idea.

Re:The court may use her actions against her

[dcw3]

When you open the door to your home and show the police something, it doesn't give them the right to snoop around for other stuff w/o a warrant. Sure, they can go after stuff with probable cause, or if there's something wrong within eyesight of that door...not the case here, and insinuating that it is would set a bad precedent.

Sure. Pick on apostrophe usage.

[Petersko]

âAre you trying to spell "parties"?â(TM)

The last bastion of people with no argument and no footing - go to minor grammar issues. Thatâ(TM)s not contributing or challenging. Itâ(TM)s just assholery.

Re:Sure. Pick on apostrophe usage.

[jpaine619]

It was a simple question. But, I've noticed that the angrier someone becomes when you point out a spelling error, the greater the chance that they are a self-important asshole.

Listen, we get it. You didn't pay attention in school. You failed to acquire the skills to effectively communicate, in written form, in English.

The rules of grammar, punctuation, spelling, and all the rest are there to help YOU put your thoughts into a form that can be correctly interpreted by your audience.

Parties and Party's are two ABSOLUTELY DIFFERENT THINGS. To a certain extent, both words could have been used, plausibly, in that sentence.

Consider the following:

Can you help your uncle, Jack, off his horse.
Can you help your uncle jack off his horse.

A comma (or two) and a capital letter can be very important. They change the whole scope of what's being asked.

Honeypot

[Anonymous Coward]

Easy solution. Make lock screen have two passwords. One opens the real data. The other opens the honeypot. If you are forced to open your phone, open the honeypot....

Average life expectancy

[MooseTick]

Even if the UK and Canada are "having trouble keeping up healthcare for all", they seem to be doing better than the US in average life expectancy and infant mortality rate.

Average life expectancy:

US: 78.69 years
UK: 80.96 years
Canada: 82.30 years

infant mortality rate:
US:6.9 deaths per 1,000 live births
UK: 5 deaths per 1,000 live births
Canada: 5.4 deaths per 1,000 live births

Suggested new phone feature...

[zeugma-amp]

There is already a feature on many phones to wipe them if a certain number of attempts are made to unlock them with the wrong password.

Why not simply have another feature that wipes the phone immediately if someone enters a specific password?

This is a feature I'd be willing to upgrade for.

Re: You Sure Talk Goode!

[Anonymous Coward]

I bet you even went to high school for a year or two!

Fuck you foreigner trash. LEARN TO TYPE IN ENGLISH.

Re: YES. IT DOES.

[Anonymous Coward]

Never let the Police into your home. Any moran with a gun and meth knows this.

It appears you are the asshole

[Anonymous Coward]

âAre y ... ?â(TM) ... Thatâ(TM)s ... Itâ(TM)s

No, bitch. YOU are the asshole.

I can save them some time

[Joey Vegetables]

They can't. 5th and 14th Amendments, preserving the pre-existing right, also protected by Common Law, against self-incrimination. I don't doubt that they will try, but, if and when they do, they mark themselves as traitors, and even if they do not face justice in this life, they will in the next.