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Previously on iPhone encryption wars... Basically, DannyBee was spot on [0]: > It's actually significantly more likely they want to unlock the phone to try to

by cjslep 11y ago

Previously on iPhone encryption wars... Basically, DannyBee was spot on [0]: > It's actually significantly more likely they want to unlock the phone to try to get more evidence against the other 6 people he was charged with, probably because it's lacking. ...but, since IANAL, this to me still doesn't address the question of how much easier would it then be for the government to attain permission to decrypt any further iPhones the government wants to peer into? (As mentioned before[1]) [0] https://news.ycombinator.com/item?id=10481952 https://news.ycombinator.com/item?id=10481952 [1] https://news.ycombinator.com/item?id=10481356 https://news.ycombinator.com/item?id=10481356

scintill76 11y ago
I don't know the proper terms, but I wonder if scope or venue should prevent the government from doing this. If they got a warrant in order to get this one guy, and now they have him, maybe it should sort of invalidate the warrant. If this court case was opened to try this one guy and he's now plead guilty, maybe the judge doesn't have jurisdiction to order further searches. But I really have no idea, and I'm hoping an expert will pipe in as they usually do on HN. :) I guess if it were this obvious, the judge would have said no... but on the other hand why does he need to hear their opinion on it if it were obvious in the other direction? I read the government's letter, and it seemed to be a stretch given what I've said above, but again I'm not qualified to say. They did add that "the Feng [guy whose phone they want] matter remains ongoing until sentencing and judgment is entered in the case", which seems a more fair point to me. Oh, and what about court-ordering the guy to unlock his phone? I thought that was legal (but maybe not in this circuit court?) This would make more sense and overcome some of my objections. It seems a bit contrived that they can put Apple on the hook to produce someone else's information that wasn't shared with Apple -- if it had been, third party doctrine would kick in.
- hguant 11y ago
  Court ordering someone to unlock their phone has been ruled as a violation of your 5th amendment rights and of 4th amendment rights to privacy by an appellate court (don't remember which, was slightly surprised when it happened). Basic logic as far as I can remember was that court can't order you to expose phone to them because phones are essentially an extension of our private thoughts in this day and age. Even if evidence is demonstrably on it (say, via looking at metadata), similar to evidence in your own head - court can't force you to fink.
  - mikeyouse 11y ago
    Be wary giving out legal advice if you're not a lawyer.. The courts can force you to do many things, especially if they're not trying to prosecute you for information you may have. Much of the case law that I've seen (note: I'm clearly not a lawyer either) with regard to phone searches has been when the police were seeking evidence that the phone's owner committed crimes -- not after they'd been convicted. This distinction can definitely be important. One concept with specific relevance to the 5th amendment is immunity given for testimony. You can be compelled to testify (even over your 5th amendment objections) if the court grants you immunity for the information that they're after. Again, IANAL, but I know enough that it's much more complicated than "phones are protected from all searches". https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution#Grants_of_immunity https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_...
    - jrs235 11y ago
      Can state courts give immunity? I would assume yes. What happens if a state court grants immunity to get at the evidence or testimony but the evidence or testimony could lead to federal or other jurisdictional (another state?) charges or prosecution? How can one be forced in one court to be exposed in others? It would seem the immunity being granted would have to be universal. How can one court/jurisdiction grant such immunity beyond its jurisdiction?
  - scintill76 11y ago
    I think that's only in the Eleventh Circuit (seems to be southeast US, not including the jurisdiction of this case): https://en.wikipedia.org/wiki/Key_disclosure_law#United_States https://en.wikipedia.org/wiki/Key_disclosure_law#United_Stat... The other cases listed involved the government already knowing things, so that the 5th didn't apply. If they got a guilty plea, they've probably got enough evidence that a similar situation could apply here. I don't think the Fifth allows you to withhold incriminating evidence you have on other people (as the government wants here.) Hmm, maybe I'm just speculating, but this makes it look even more like a beachhead for being able to do this in the future. Little risk of losing the conviction, no apparent attempt to have the suspect do it himself (but maybe my research is just poor). They've used this tactic before: https://en.wikipedia.org/wiki/All_Writs_Act https://en.wikipedia.org/wiki/All_Writs_Act .

by cjslep 11y ago

scintill76 11y ago

I don't know the proper terms, but I wonder if scope or venue should prevent the government from doing this. If they got a warrant in order to get this one guy, and now they have him, maybe it should sort of invalidate the warrant. If this court case was opened to try this one guy and he's now plead guilty, maybe the judge doesn't have jurisdiction to order further searches. But I really have no idea, and I'm hoping an expert will pipe in as they usually do on HN. :) I guess if it were this obvious, the judge would have said no... but on the other hand why does he need to hear their opinion on it if it were obvious in the other direction? I read the government's letter, and it seemed to be a stretch given what I've said above, but again I'm not qualified to say. They did add that "the Feng [guy whose phone they want] matter remains ongoing until sentencing and judgment is entered in the case", which seems a more fair point to me. Oh, and what about court-ordering the guy to unlock his phone? I thought that was legal (but maybe not in this circuit court?) This would make more sense and overcome some of my objections. It seems a bit contrived that they can put Apple on the hook to produce someone else's information that wasn't shared with Apple -- if it had been, third party doctrine would kick in.

hguant 11y ago
Court ordering someone to unlock their phone has been ruled as a violation of your 5th amendment rights and of 4th amendment rights to privacy by an appellate court (don't remember which, was slightly surprised when it happened). Basic logic as far as I can remember was that court can't order you to expose phone to them because phones are essentially an extension of our private thoughts in this day and age. Even if evidence is demonstrably on it (say, via looking at metadata), similar to evidence in your own head - court can't force you to fink.
- mikeyouse 11y ago
  Be wary giving out legal advice if you're not a lawyer.. The courts can force you to do many things, especially if they're not trying to prosecute you for information you may have. Much of the case law that I've seen (note: I'm clearly not a lawyer either) with regard to phone searches has been when the police were seeking evidence that the phone's owner committed crimes -- not after they'd been convicted. This distinction can definitely be important. One concept with specific relevance to the 5th amendment is immunity given for testimony. You can be compelled to testify (even over your 5th amendment objections) if the court grants you immunity for the information that they're after. Again, IANAL, but I know enough that it's much more complicated than "phones are protected from all searches". https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution#Grants_of_immunity https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_...
  - jrs235 11y ago
    Can state courts give immunity? I would assume yes. What happens if a state court grants immunity to get at the evidence or testimony but the evidence or testimony could lead to federal or other jurisdictional (another state?) charges or prosecution? How can one be forced in one court to be exposed in others? It would seem the immunity being granted would have to be universal. How can one court/jurisdiction grant such immunity beyond its jurisdiction?
- scintill76 11y ago
  I think that's only in the Eleventh Circuit (seems to be southeast US, not including the jurisdiction of this case): https://en.wikipedia.org/wiki/Key_disclosure_law#United_States https://en.wikipedia.org/wiki/Key_disclosure_law#United_Stat... The other cases listed involved the government already knowing things, so that the 5th didn't apply. If they got a guilty plea, they've probably got enough evidence that a similar situation could apply here. I don't think the Fifth allows you to withhold incriminating evidence you have on other people (as the government wants here.) Hmm, maybe I'm just speculating, but this makes it look even more like a beachhead for being able to do this in the future. Little risk of losing the conviction, no apparent attempt to have the suspect do it himself (but maybe my research is just poor). They've used this tactic before: https://en.wikipedia.org/wiki/All_Writs_Act https://en.wikipedia.org/wiki/All_Writs_Act .