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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."
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.
Hire a Linux system administrator, systems engineer,
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.
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.
I read at +2. If your post doesn't reach that level I will not see or respond to it.
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...
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
I read at +2. If your post doesn't reach that level I will not see or respond to it.
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.
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.
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.
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.
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.
Custom electronics and digital signage for your business: www.evcircuits.com
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.
File under 'M' for 'Manic ranting'
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.
I'd like my phone to have a secondary code that causes it to erase all data on the phone.
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.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
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
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..
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.)
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.
If you're scared of your govt then you need to further restrict its powers
Vote 3rd Party in 2016 and beyond
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?
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
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.
Just another day in Paradise