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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."
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."
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.
I read at +2. If your post doesn't reach that level I will not see or respond to it.
After a while I can't remember passwords I have used a few months back.
If builders built buildings the way programmers wrote programs, then the first woodpecker would destroy civilization.
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.
I read at +2. If your post doesn't reach that level I will not see or respond to it.
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.
Chaos - everything, everywhere, everywhen
The problem isn't that he won, it's that he's a shitty President.
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.
const int one = 65536; (Silvermoon, Texture.cs)
SJW, n: "Someone I don't like, and by the way I'm a fuckwit" - AC