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"The Fifth Amendment privilege against compelled self-incrimination protects “testimonial” communications. Testimonial communications are those that require a p
by 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 agoI 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 agoI'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
- edblarney 10y agoIf that's true, it's ridiculous. The issue at hand is that it's a 'locking mechanism' - something that only specific people can do, by virtue of the fact that they have a key, or knowledge, or whatever. Whether it's biometric, a password, or a padlock - is basically irrelevant to the nature of the situation, I would hope that it's recognized as such legally, although I admit I have no idea.
- subway 10y agoAs with all things legal, it's all up to the Judge(es), and how they decide to interpret the law and your actions.