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I don't think its a problem for someone actively breaking the law to be held indefinitely for contempt until they stop breaking the law. I thought being compel

I don't think its a problem for someone actively breaking the law to be held indefinitely for contempt until they stop breaking the law. I thought being compelled to reveal a passphrase was no longer required.

themartorana 10y ago
That's a problem for me. Charge and prosecute them or let them go. Indefinite detention without a fair and speedy trial is unquestionably unconstitutional.
- bitJericho 10y ago
  Well imagine a criminal is holding a piece of your property or even a person and not revealing where that is. Do you think it's reasonable to hold them for 30 days and then let them go and say "ah well I guess you can return that/them if you want cuz you did your time." A charge of contempt is still a charge.
  - weaksauce 10y ago
    Convicted of a crime is different than suspicion of a crime.
  - randommodnar 10y ago
    So do you think it's reasonable that contempt of court can carry a life sentence without even being convicted by a jury of your peers? Is contempt of court a worse crime than assault or manslaughter? You have the right to not divulge information from your mind that would incriminate yourself. In the US this is called the 5th amendment.
    - koenigdavidmj 10y ago
      Before you're given contempt for not divulging information you are given immunity from criminal charges as a result of that testimony.
      - tanderson92 10y ago
        Source? That is certainly not true in general.
        koenigdavidmj 10y ago
        https://www.justice.gov/usam/criminal-resource-manual-780-direct-contempt-witnesss-refusal-obey-court-order-testify-trial https://www.justice.gov/usam/criminal-resource-manual-780-di...
        spdustin 10y ago
        As GP said, that's not true in general. Immunity is offered when the prosecution believes your testimony will result in further arrests or in prevention of future crimes. That circumstance is exceedingly rare outside of episodes of "24".
    - deleted 10y ago
      [deleted]
    - Natsu 10y ago
      There's no jury because it's regarding acts that occurred in court, so it's simply not meaningful to have a jury decide the facts of the case when they happened right in front of the judge, who does not need anyone to figure out the veracity of what they just personally witnessed. The alternative is that people have a right to stop the courts from functioning. Our interests in not having courts that can be easily thwarted probably does outweigh our interests in any single conviction. It's only forever if you refuse to comply for that long. It is coercive. The justice system does not, because it cannot, ask you to comply. It forces you to comply and it does not take no for an answer or it would not function.
  - pavel_lishin 10y ago
    Do you think it's reasonable to imprison someone for life if they don't tell you where they hid your car? And holding a person is already a separate charge - kidnapping and unlawful imprisonment.
    - bitJericho 10y ago
      You can be charged with both. I hope you never have to deal with someone who flaunts the courts in your face. You'll be glad the system works the way it does, if anyone bothers to enforce the law.
    - EdHominem 10y ago
      Or worse, they really didn't steal it and the court doesn't believe them. An actual sentence eventually has an end.
  - chris_wot 10y ago
    They can't be charged with contempt over that. Compelling them to do so is forcing them to self-incriminate themselves. Self incrimination protections are there for a good reason. If the person is on trial, then they haven't pleaded guilty - they say they haven't done what they are accused of. If they are in fact innocent, if the court decided to enforce them into provide this information and jailed them for contempt, it would literally be indefinite because they are innocent and cannot provide information on what they don't know! I guess that's why a key or fingerprint is allowed - it is definitely something that can be used one way or the other. If they key doesn't work, it doesn't work. Same with a fingerprint. But a passcode - it is not definitive. The defendant may say they don't know it as someone changed it on them. They then type in a wrong code: how are you going to disprove that?
  - jayd16 10y ago
    Is it more reasonable to get a life sentence because someone thinks you know something you don't?
- rayiner 10y ago
  The contempt power is in the Judiciary Act of 1789, so it's hard to say that the founding generation would have considered it unconstitutional. Moreover, what exactly would she be tried for? Do we need a trial to establish that she has in fact continued to disobey the judge's order to unlock the phone?
  - bsder 10y ago
    Yes, we probably would need a trial in that instance. The courts really don't get to hold someone indefinitely without charging them with something. Contempt is generally used as a quick and dirty hack for someone disobeying the procedures of the court. Not providing a fingerprint to unlock evidence is WAY beyond that scope and probably should require a hearing and trial. Now, she could be detained while that hearing is proceeding, but that's different that just being jailed for contempt.
    - rayiner 10y ago
      A trial for what?
      - cmdrfred 10y ago
        If you can't charge her with a crime then why are you holding her?
        tptacek 10y ago
        In order to compel her to obey the orders of the court.
        bsder 10y ago
        If that order is lawful, then it probably has a chargeable crime behind it. If it doesn't, then there should be limit. Compelling someone to open a phone with a fingerprint is far from settled law. It should be litigated properly as part of the trial rather than with a "contempt" charge. In this instance, it is the court that is attempting to end run an unsettled area of the law using "contempt".
headShrinker 10y ago
Prove that they broke the law!
spdustin 10y ago
Would you mind terribly quoting the law that requires me to submit to the physical act of unlocking my phone? Since it's not a two-factor system, it is equivalent to a passphrase, which (IIRC) has been upheld to be a form of testimony, and therefore the fifth amendment SHOULD allow the suspect to refuse to "utter their fingerprint", so to speak. In any case, if the fingerprint isn't the same "testimony" as a passphrase, the suspect is not in violation of the law after 48 hours has elapsed, since "uttering their fingerprint" (as I'm choosing to style it) after 48 hours wouldn't unlock the phone any more anyway.
- khedoros 10y ago
  Providing a fingerprint isn't considered testimony, and the law doesn't currently make an exception for a fingerprint used as the equivalent of a passphrase. The fifth amendment protects knowledge, but not physical constructs like a fingerprint or DNA swab[1]. So, you can be compelled to provide a fingerprint, and the use that the fingerprint is put to is outside the scope of 5th amendment protections. http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf
  - taneq 10y ago
    It's gonna get really interesting if/when neuroscience advances to the point where we can just read a passcode out of someone's brainwaves. I don't see any legal difference between the fingerprint case and the brain-scan case (both are measuring a physical aspect of the person) but it's going to completely bypass the fifth amendment.
- rayiner 10y ago
  Merriam-Webster defines "testimony" as "something that someone says especially in a court of law while formally promising to tell the truth." The Supreme Court has interpreted this very broadly, to include anything that requires accessing information from the mind. That's why some courts have held that passwords are testimonial. But to read it to include touching your thumb to a fingerprint sensor obliterates any meaning the word has.

themartorana 10y ago

That's a problem for me. Charge and prosecute them or let them go. Indefinite detention without a fair and speedy trial is unquestionably unconstitutional.

bitJericho 10y ago
Well imagine a criminal is holding a piece of your property or even a person and not revealing where that is. Do you think it's reasonable to hold them for 30 days and then let them go and say "ah well I guess you can return that/them if you want cuz you did your time." A charge of contempt is still a charge.
- weaksauce 10y ago
  Convicted of a crime is different than suspicion of a crime.
- randommodnar 10y ago
  So do you think it's reasonable that contempt of court can carry a life sentence without even being convicted by a jury of your peers? Is contempt of court a worse crime than assault or manslaughter? You have the right to not divulge information from your mind that would incriminate yourself. In the US this is called the 5th amendment.
  - koenigdavidmj 10y ago
    Before you're given contempt for not divulging information you are given immunity from criminal charges as a result of that testimony.
    - tanderson92 10y ago
      Source? That is certainly not true in general.
      - koenigdavidmj 10y ago
        https://www.justice.gov/usam/criminal-resource-manual-780-direct-contempt-witnesss-refusal-obey-court-order-testify-trial https://www.justice.gov/usam/criminal-resource-manual-780-di...
        spdustin 10y ago
        As GP said, that's not true in general. Immunity is offered when the prosecution believes your testimony will result in further arrests or in prevention of future crimes. That circumstance is exceedingly rare outside of episodes of "24".
  - deleted 10y ago
    [deleted]
  - Natsu 10y ago
    There's no jury because it's regarding acts that occurred in court, so it's simply not meaningful to have a jury decide the facts of the case when they happened right in front of the judge, who does not need anyone to figure out the veracity of what they just personally witnessed. The alternative is that people have a right to stop the courts from functioning. Our interests in not having courts that can be easily thwarted probably does outweigh our interests in any single conviction. It's only forever if you refuse to comply for that long. It is coercive. The justice system does not, because it cannot, ask you to comply. It forces you to comply and it does not take no for an answer or it would not function.
- pavel_lishin 10y ago
  Do you think it's reasonable to imprison someone for life if they don't tell you where they hid your car? And holding a person is already a separate charge - kidnapping and unlawful imprisonment.
  - bitJericho 10y ago
    You can be charged with both. I hope you never have to deal with someone who flaunts the courts in your face. You'll be glad the system works the way it does, if anyone bothers to enforce the law.
  - EdHominem 10y ago
    Or worse, they really didn't steal it and the court doesn't believe them. An actual sentence eventually has an end.
- chris_wot 10y ago
  They can't be charged with contempt over that. Compelling them to do so is forcing them to self-incriminate themselves. Self incrimination protections are there for a good reason. If the person is on trial, then they haven't pleaded guilty - they say they haven't done what they are accused of. If they are in fact innocent, if the court decided to enforce them into provide this information and jailed them for contempt, it would literally be indefinite because they are innocent and cannot provide information on what they don't know! I guess that's why a key or fingerprint is allowed - it is definitely something that can be used one way or the other. If they key doesn't work, it doesn't work. Same with a fingerprint. But a passcode - it is not definitive. The defendant may say they don't know it as someone changed it on them. They then type in a wrong code: how are you going to disprove that?
- jayd16 10y ago
  Is it more reasonable to get a life sentence because someone thinks you know something you don't?
rayiner 10y ago
The contempt power is in the Judiciary Act of 1789, so it's hard to say that the founding generation would have considered it unconstitutional. Moreover, what exactly would she be tried for? Do we need a trial to establish that she has in fact continued to disobey the judge's order to unlock the phone?
- bsder 10y ago
  Yes, we probably would need a trial in that instance. The courts really don't get to hold someone indefinitely without charging them with something. Contempt is generally used as a quick and dirty hack for someone disobeying the procedures of the court. Not providing a fingerprint to unlock evidence is WAY beyond that scope and probably should require a hearing and trial. Now, she could be detained while that hearing is proceeding, but that's different that just being jailed for contempt.
  - rayiner 10y ago
    A trial for what?
    - cmdrfred 10y ago
      If you can't charge her with a crime then why are you holding her?
      - tptacek 10y ago
        In order to compel her to obey the orders of the court.
        bsder 10y ago
        If that order is lawful, then it probably has a chargeable crime behind it. If it doesn't, then there should be limit. Compelling someone to open a phone with a fingerprint is far from settled law. It should be litigated properly as part of the trial rather than with a "contempt" charge. In this instance, it is the court that is attempting to end run an unsettled area of the law using "contempt".

headShrinker 10y ago

Prove that they broke the law!

spdustin 10y ago

Would you mind terribly quoting the law that requires me to submit to the physical act of unlocking my phone? Since it's not a two-factor system, it is equivalent to a passphrase, which (IIRC) has been upheld to be a form of testimony, and therefore the fifth amendment SHOULD allow the suspect to refuse to "utter their fingerprint", so to speak. In any case, if the fingerprint isn't the same "testimony" as a passphrase, the suspect is not in violation of the law after 48 hours has elapsed, since "uttering their fingerprint" (as I'm choosing to style it) after 48 hours wouldn't unlock the phone any more anyway.

khedoros 10y ago
Providing a fingerprint isn't considered testimony, and the law doesn't currently make an exception for a fingerprint used as the equivalent of a passphrase. The fifth amendment protects knowledge, but not physical constructs like a fingerprint or DNA swab[1]. So, you can be compelled to provide a fingerprint, and the use that the fingerprint is put to is outside the scope of 5th amendment protections. http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf
- taneq 10y ago
  It's gonna get really interesting if/when neuroscience advances to the point where we can just read a passcode out of someone's brainwaves. I don't see any legal difference between the fingerprint case and the brain-scan case (both are measuring a physical aspect of the person) but it's going to completely bypass the fifth amendment.
rayiner 10y ago
Merriam-Webster defines "testimony" as "something that someone says especially in a court of law while formally promising to tell the truth." The Supreme Court has interpreted this very broadly, to include anything that requires accessing information from the mind. That's why some courts have held that passwords are testimonial. But to read it to include touching your thumb to a fingerprint sensor obliterates any meaning the word has.