4 ms·

Forcing Someone to Unlock and Decrypt Their Phone Violates the Constitution

71 points by DiabloD3 10y ago

kevincox 10y ago
To me the most important reason that you can't be forced to disclose a password is that it is impossible to prove that you know it at all. So you can always say "I don't know it" or "I forgot it" so these constitutional rights are basically ensuing you won't get tortured/harassed for something you couldn't reveal. However with fingerprints you can "prove" that you can't unlock the phone by touching all the fingers to it so the problem doesn't apply. Basicly there is nothing special about encrypted data, only the "data" inside your head.
- r00fus 10y ago
  On Apple's implementation, this wouldn't work; you're allowed five guesses before it reverts to password only, and you have 10 fingers. Theoretically, you could encode using a rare finger (left ring) and exhaust the retries with the other ones. So I'd argue also unconstitutional to force unlocking.
  - kevincox 10y ago
    Yes, I thought about this by it seems slightly removed from my core point. They could force you to put whatever fingers they wanted on the sensor. Of course if you can touch the wrong finger enough times before they get the phone they are still out of luck. My argument is that they can make you touch the sensor because that isn't something you can prentend to not be able to do. It is somewhat immerterial if it actually unlocks the phone or not.
- rad88 10y ago
  On the face of it, claiming you lack the ability to access your own phone appears evasive and dishonest. Beware of this. Apparently misleading or obstructive behavior might cause more severe consequences than invoking your legal right to remain silent, speak with an attorney, etc. Asserting constitutional protections against unlawful search or self incrimination is not an antagonistic act and is less likely to anger an officer or escalate their investigation.
deleted 10y ago
[deleted]
otoburb 10y ago
"The Fifth Amendment privilege against compelled self-incrimination protects “testimonial” communications. Testimonial communications are those that require a person to use “the contents of his own mind” to communicate some fact. Testimonial communications don’t have to be verbal; the key is that the information conveyed must come from the suspect’s own mind. As we explain in our brief, compelled passcode-based decryption is inherently testimonial—and thus always prohibited by the Fifth Amendment [...]" The argument rests on testimonial communications, which doesn't seem to include a fingerprint or other biometric-based unlocking mechanism since the biometric markers do not from the suspect's own mind. I'd imagine people would then point to the second "independent reason" the EFF proceeds to articulate in their amicus brief whereby "the process of decryption itself is testimonial because it involves translating unintelligible, encrypted evidence into a form that can be used and understood by investigators—again relying on the contents of the suspect’s mind". I hope the second reason is sufficiently strong enough to qualify as testimonial without the passcode/password-based phrase. I hope I'm wrong here, but given the careful EFF wording, it seems that if you're worried about this sort of thing it's simply best to disable biometric capabilities for your device so you have both testimonial factors in your favour.
- edblarney 10y ago
  I don't think that the biometric issue has anything to do with it. It's the content. If you have something 'in a safe' - can the police arbitrary require you to unlock that safe to produce whatever is inside? It's unlikely, without a warrant, no? Passwords, biometrics - secondary issues. Or perhaps a good analogy would be the 'locked in the glovebox' - I don't think police can require you to open it if it's locked, unless they have a warrant. Same for trunk, no?
  - otoburb 10y ago
    I'm not a lawyer. However, the amicus brief[1] is pretty good reading and addresses your scenario above with a locked box, vault or safe. In those instances, the "content" doesn't change (hence the decryption argument doesn't apply here), but the method by which the lockbox is secured greatly matters (page 13 of the brief): "As the Supreme Court noted in Hubbell, the compelled entry of a safe’s combination is testimonial because it requires the compelled use of the “contents of [an individual’s] own mind” and is thus within the Fifth Amendment’s privilege. [...] Meanwhile, the compelled production of a lockbox’s key is not testimonial, because it involves “a mere physical act”." Thus, biometric data (i.e. the act of placing your face or finger near/on the device to unlock) could be construed as a "mere physical act" as referenced in the U.S. vs. Hubbell Supreme Court case[2]. [1] https://www.eff.org/document/us-v-mitchell-eff-and-aclu-amicus-brief https://www.eff.org/document/us-v-mitchell-eff-and-aclu-amic... [2] https://en.wikipedia.org/wiki/United_States_v._Hubbell https://en.wikipedia.org/wiki/United_States_v._Hubbell
nafizh 10y ago
Has any organization yet gone to the court regarding the same situation but at borders and airports? This is also something that deserves urgent attention. At the least, we need a clear ruling whether you can force people to open their phone or laptop at the border(which you can at the moment).
codycraven 10y ago
Regarding biometrics my Android supports unlocking with my fingerprint but requires a password to decrypt at startup. My planned solution is to power down my device whenever coming in contact with authorities.
oliwarner 10y ago
I can still barely believe that ransacking people's devices and online profiles without probable cause is considered —by CBP and currently, the law— as a reasonable search. And it's alright for Americans. You can just clam up and your right to return will kick in (after some inconvenient hours). But if a Jonny Foreigner like me tries that, I'm stuffed back on a plane after a thorough fisting because I was resisting a search in a suspicious manner. 9/11 was horrible but if you think checking my Facebook profile and Whatsapp messages after the planes have landed is going to stop the next one, you're almost as big an idiot at the guy running the show there. I used to love travelling to America but it's not a holiday when you treat your visitors like terrorists in front of their families.
- deleted 10y ago
  [deleted]

71 points by DiabloD3 10y ago

To me the most important reason that you can't be forced to disclose a password is that it is impossible to prove that you know it at all. So you can always say "I don't know it" or "I forgot it" so these constitutional rights are basically ensuing you won't get tortured/harassed for something you couldn't reveal. However with fingerprints you can "prove" that you can't unlock the phone by touching all the fingers to it so the problem doesn't apply. Basicly there is nothing special about encrypted data, only the "data" inside your head.

r00fus 10y ago
On Apple's implementation, this wouldn't work; you're allowed five guesses before it reverts to password only, and you have 10 fingers. Theoretically, you could encode using a rare finger (left ring) and exhaust the retries with the other ones. So I'd argue also unconstitutional to force unlocking.
- kevincox 10y ago
  Yes, I thought about this by it seems slightly removed from my core point. They could force you to put whatever fingers they wanted on the sensor. Of course if you can touch the wrong finger enough times before they get the phone they are still out of luck. My argument is that they can make you touch the sensor because that isn't something you can prentend to not be able to do. It is somewhat immerterial if it actually unlocks the phone or not.
rad88 10y ago
On the face of it, claiming you lack the ability to access your own phone appears evasive and dishonest. Beware of this. Apparently misleading or obstructive behavior might cause more severe consequences than invoking your legal right to remain silent, speak with an attorney, etc. Asserting constitutional protections against unlawful search or self incrimination is not an antagonistic act and is less likely to anger an officer or escalate their investigation.

deleted 10y ago

[deleted]

otoburb 10y ago

"The Fifth Amendment privilege against compelled self-incrimination protects “testimonial” communications. Testimonial communications are those that require a person to use “the contents of his own mind” to communicate some fact. Testimonial communications don’t have to be verbal; the key is that the information conveyed must come from the suspect’s own mind. As we explain in our brief, compelled passcode-based decryption is inherently testimonial—and thus always prohibited by the Fifth Amendment [...]" The argument rests on testimonial communications, which doesn't seem to include a fingerprint or other biometric-based unlocking mechanism since the biometric markers do not from the suspect's own mind. I'd imagine people would then point to the second "independent reason" the EFF proceeds to articulate in their amicus brief whereby "the process of decryption itself is testimonial because it involves translating unintelligible, encrypted evidence into a form that can be used and understood by investigators—again relying on the contents of the suspect’s mind". I hope the second reason is sufficiently strong enough to qualify as testimonial without the passcode/password-based phrase. I hope I'm wrong here, but given the careful EFF wording, it seems that if you're worried about this sort of thing it's simply best to disable biometric capabilities for your device so you have both testimonial factors in your favour.

edblarney 10y ago
I don't think that the biometric issue has anything to do with it. It's the content. If you have something 'in a safe' - can the police arbitrary require you to unlock that safe to produce whatever is inside? It's unlikely, without a warrant, no? Passwords, biometrics - secondary issues. Or perhaps a good analogy would be the 'locked in the glovebox' - I don't think police can require you to open it if it's locked, unless they have a warrant. Same for trunk, no?
- otoburb 10y ago
  I'm not a lawyer. However, the amicus brief[1] is pretty good reading and addresses your scenario above with a locked box, vault or safe. In those instances, the "content" doesn't change (hence the decryption argument doesn't apply here), but the method by which the lockbox is secured greatly matters (page 13 of the brief): "As the Supreme Court noted in Hubbell, the compelled entry of a safe’s combination is testimonial because it requires the compelled use of the “contents of [an individual’s] own mind” and is thus within the Fifth Amendment’s privilege. [...] Meanwhile, the compelled production of a lockbox’s key is not testimonial, because it involves “a mere physical act”." Thus, biometric data (i.e. the act of placing your face or finger near/on the device to unlock) could be construed as a "mere physical act" as referenced in the U.S. vs. Hubbell Supreme Court case[2]. [1] https://www.eff.org/document/us-v-mitchell-eff-and-aclu-amicus-brief https://www.eff.org/document/us-v-mitchell-eff-and-aclu-amic... [2] https://en.wikipedia.org/wiki/United_States_v._Hubbell https://en.wikipedia.org/wiki/United_States_v._Hubbell

nafizh 10y ago

Has any organization yet gone to the court regarding the same situation but at borders and airports? This is also something that deserves urgent attention. At the least, we need a clear ruling whether you can force people to open their phone or laptop at the border(which you can at the moment).

codycraven 10y ago

Regarding biometrics my Android supports unlocking with my fingerprint but requires a password to decrypt at startup. My planned solution is to power down my device whenever coming in contact with authorities.

oliwarner 10y ago

I can still barely believe that ransacking people's devices and online profiles without probable cause is considered —by CBP and currently, the law— as a reasonable search. And it's alright for Americans. You can just clam up and your right to return will kick in (after some inconvenient hours). But if a Jonny Foreigner like me tries that, I'm stuffed back on a plane after a thorough fisting because I was resisting a search in a suspicious manner. 9/11 was horrible but if you think checking my Facebook profile and Whatsapp messages after the planes have landed is going to stop the next one, you're almost as big an idiot at the guy running the show there. I used to love travelling to America but it's not a holiday when you treat your visitors like terrorists in front of their families.

deleted 10y ago
[deleted]