7 ms·

There is a high probability that this will be challenged at a higher level.

by lgleason 8y ago

gigatexal 8y ago
Let’s hope the Supreme Court hears it and it stands.
- trumped 8y ago
  I hope that it doesn't so that hopefully people will stop using their body as a password (it should only be used as a login name if you absolutely need to use it)
- sonnyblarney 8y ago
  It won't stand because it's not pragmatic. The issue around 'passwords being in your mind' is interesting, but they'll move past it. If you have evidence of a crime on your phone, it must be part of the process. There's nothing remotely unlawful about search of property so long as there is merit, oversight, warrant etc.. Ultimately, this will be no different than searching your car. Now, the cops doing it without a warrant, shenanigans at the border, searchings stuff they should not be - this is all another matter entirely. There will be some weird scenarios around people 'forgetting' passwords etc. but otherwise, it's just a new angle on the same old thing. Those who would like to see better judicial reform I think should look elsewhere, into such issues as why/how warrants are issued, the transparency around them, etc..
  - chii 8y ago
    If the police can force you to unlock a safe, they should also be allowed to force you to unlock a phone. But, unlocking a phone should come with a lot of paper work and checks and balances to ensure that it's done only when really required?
    - manfredo 8y ago
      My understanding is that if you are in possession of a key to a safe then law enforcement or the court can compel you to produce the key. But if the safe has a combination, then the court cannot make you give up the combination as that may be self incriminating. Not to mention the practical aspects of trying to compel someone to give up a secret. What if they claim to have forgotten the combination? What if they actually _did_ forget? I imagine the situation with electronics will be similar. If a key to, say, an encrypted volume is stored on a flash drive then they may compel someone to produce it (analogous to a safe key). But if the drive is protected by a password, then the government cannot compel someone to provide the secret.
      - dahfizz 8y ago
        I think that's why the article mentions finger prints and faceid. Those are the 'keys' to your phone.
  - richardthered 8y ago
    The problem with forcing someone to reveal a secret (e.g. a password), is that ultimately, there's no way to prove that someone actually knows the password. If I say that I forgot the password, and a judge throws me in jail for contempt of court, I could rot there forever. There is absolutely no way for me to ever prove that I truly forgot the password. You can't prove a negative. With fingerprints or face scanning, neither of these is an issue. You put your fingerprint on the device, or you scan your face. So, I think that forcing someone to reveal a secret that is purely in their head is fundamentally different than compelling other forms of access (physical keys, fingerprint scans, face scans, etc.). The physical access methods can be verified to either work or not. That's not true for mental secrets.
    - rrobukef 8y ago
      Actually, there is a fingerprint in my phone. It isn't any of my fingers (I can't recall, maybe my elbow). Will I be in contempt of court for scanning my finger 'wrong'. I don't think my elbow will work a month later, it must have changed more than my finger.
      - telchar 8y ago
        I don't see why this is downvoted, parent brings up a good point. If a phone has a fingerprint or face lock, there is proof whose fingerprint or face (or whether it is a fingerprint or face) is the key. Is that knowledge not similar to a password? If the phone requires a PIN or passcode after say, 3 attempts, that's important information.
    - killaken2000 8y ago
      Francis Rawls is still in jail after 2 years for not decrypting his hard drive. He's in contempt indefinitely until he decrypts the drive.
      - someone7x 8y ago
        Reminds of that guy in The Crucible that gets crushed with rocks for refusing to take part in the witch trial.
  - sathackr 8y ago
    The issue arises when the knowledge of the password itself is incriminating. The 5th amendment prohibits forced self incrimination. Forcing a suspect to divulge information that is directly incriminating will not stand constitutional review, regardless of the nature of the information. You have the right to remain silent.
    - nerdponx 8y ago
      What if they have a warrant? At that point I would argue that you are not self-incriminating. In my mind, it's like if the police had a warrant to search your apartment and you didn't let them in.
      - umvi 8y ago
        More like: Police: "We have a warrant for your apartment, let us in" Suspect: "Sorry, I lost the key when I went hiking in the Rocky Mountains, there's no way in. Oh, and be aware that if you try to force your way in more than 5 times, the apartment will catch fire and destroy everything inside" What would happen in this case? Can the suspect be held in contempt?
        jdc 8y ago
        Probably obstruction of justice IMHO
        int_19h 8y ago
        Doesn't that require intent and planning? If the arrangements were in place before the crime was even planned, how can it be obstruction?
        nerdponx 8y ago
        It's obstruction if they didn't actually lose the key, or the deliberately "lost" the key.
        8y ago
  - nerdponx 8y ago
    It will be interesting what happens at airports. Nominally, the reason they check your bag at the airport is for security. But in the process they can find all sorts of other stuff that isn't dangerous to fly with but is illegal, e.g. marijuana. So the whole thing becomes an avenue to warrantless search. You can't make the same argument about a computer or phone -- you can't bring down a plane or hurt anyone by having certain pictures on your hard drive. Anything you could do with a phone (e.g. trigger a bomb) would require some other physical infiltration, which hopefully would be caught by all the scanning and searching of people and baggage that we do already. So I would hope that a sensible explicitly disallows this "airport loophole" in the process of bringing phone search into the normal legal process of warranted search... but I am doubtful. There are powerful people in the USA, UK, Australia, etc. would love the unfettered ability to search the phone of every air traveler.
    - sokoloff 8y ago
      How does TSA know your giant laptop is really a laptop and not a bomb inside a laptop case? One indicator is whether it powers up and you can log into it. (I'm not saying I love that answer, but it's a better indicator than just popping up a backlit lock screen [which could be a sheet of acetate with a fixed image])
      - topmonk 8y ago
        A raspberry pi could display a login prompt. The rest could be contraband.
  - brian-armstrong 8y ago
    Aren't you confusing property with ideas? I agree, the physical phone itself should be part of discovery. Authorities should be allowed to physically disassemble the phone and inspect its insides or run forensic tests on it. The content on the phone is a matter of interpretation, subject to proper decryption. It is just an idea, no different from decoding ideas in somebody's journal. It makes no sense to talk about discovery of this.
    - sonnyblarney 8y ago
      1's and 0's representing words are the same thing as ink blots in the form of characters representing words.
      - int_19h 8y ago
        So, if you encrypt your paper journal, can you be compelled to decrypt it?
  - AdrianB1 8y ago
    It it's the same as searching the car, open the door and search. Break the window, if needed. But it is more like searching your brain, which is the whole point of the 5th, it seems. On your argumentation, there is no 5th. You can get a warrant to search someone's mind by asking questions they need to answer, even if it's self-incriminating. End of story.
  - anigbrowl 8y ago
    I think you need to read the court opinion, because you're only addressing one half of it. There's a 5th amendment aspect too and that's a lot harder to overcome.
  - tokyodude 8y ago
    And in 20/30 years when the phone is embedded in your brain? A phone isn't a car. It's an extension of my brain. I use it to store memories that I offload from my brain. As an example I used to have 50 to 100 phone numbers memorized. Now I have zero because they are on the external part of my brain. I see this as no different than having to decode the secret code in the ledger. You can see the encrypted data. I'm not required to decrypt it. (or am I? I don't know the law on coded ledgers)
  - pc86 8y ago
    > If you have evidence of a crime on your phone, it must be part of the process. Then access it. If you can't access, do good police work and (legally) acquire access to it. If the entire success of your case hinges on convincing someone to incriminate themselves by giving you the password, build a better case before arresting them or tipping them off to the investigation. > Ultimately, this will be no different than searching your car. This can be done 100% with the accused's intervention. A LEO can see something that gives them probable cause for a warrant. A locksmith can open the car or the LEO can simply break the window and unlock it. Just because the police don't have the technical ability to get into a phone without the user's intervention doesn't mean that person should be forced to divulge information that could incriminate them.
- gammateam 8y ago
  The only way for this to stand is if the 9th circuit upholds the ruling and the Supreme Court declines to hear it Another circuit will disagree with the 9th circuit and the supreme is forced to take the case, they wont uphold a novel 9th circuit ruling There isnt an interpretation of the constitution possible for them to, and a the composition of the court makes this even more unlikely to pluck from thin air

There is a high probability that this will be challenged at a higher level.

gigatexal 8y ago

Let’s hope the Supreme Court hears it and it stands.

trumped 8y ago
I hope that it doesn't so that hopefully people will stop using their body as a password (it should only be used as a login name if you absolutely need to use it)
sonnyblarney 8y ago
It won't stand because it's not pragmatic. The issue around 'passwords being in your mind' is interesting, but they'll move past it. If you have evidence of a crime on your phone, it must be part of the process. There's nothing remotely unlawful about search of property so long as there is merit, oversight, warrant etc.. Ultimately, this will be no different than searching your car. Now, the cops doing it without a warrant, shenanigans at the border, searchings stuff they should not be - this is all another matter entirely. There will be some weird scenarios around people 'forgetting' passwords etc. but otherwise, it's just a new angle on the same old thing. Those who would like to see better judicial reform I think should look elsewhere, into such issues as why/how warrants are issued, the transparency around them, etc..
- chii 8y ago
  If the police can force you to unlock a safe, they should also be allowed to force you to unlock a phone. But, unlocking a phone should come with a lot of paper work and checks and balances to ensure that it's done only when really required?
  - manfredo 8y ago
    My understanding is that if you are in possession of a key to a safe then law enforcement or the court can compel you to produce the key. But if the safe has a combination, then the court cannot make you give up the combination as that may be self incriminating. Not to mention the practical aspects of trying to compel someone to give up a secret. What if they claim to have forgotten the combination? What if they actually _did_ forget? I imagine the situation with electronics will be similar. If a key to, say, an encrypted volume is stored on a flash drive then they may compel someone to produce it (analogous to a safe key). But if the drive is protected by a password, then the government cannot compel someone to provide the secret.
    - dahfizz 8y ago
      I think that's why the article mentions finger prints and faceid. Those are the 'keys' to your phone.
- richardthered 8y ago
  The problem with forcing someone to reveal a secret (e.g. a password), is that ultimately, there's no way to prove that someone actually knows the password. If I say that I forgot the password, and a judge throws me in jail for contempt of court, I could rot there forever. There is absolutely no way for me to ever prove that I truly forgot the password. You can't prove a negative. With fingerprints or face scanning, neither of these is an issue. You put your fingerprint on the device, or you scan your face. So, I think that forcing someone to reveal a secret that is purely in their head is fundamentally different than compelling other forms of access (physical keys, fingerprint scans, face scans, etc.). The physical access methods can be verified to either work or not. That's not true for mental secrets.
  - rrobukef 8y ago
    Actually, there is a fingerprint in my phone. It isn't any of my fingers (I can't recall, maybe my elbow). Will I be in contempt of court for scanning my finger 'wrong'. I don't think my elbow will work a month later, it must have changed more than my finger.
    - telchar 8y ago
      I don't see why this is downvoted, parent brings up a good point. If a phone has a fingerprint or face lock, there is proof whose fingerprint or face (or whether it is a fingerprint or face) is the key. Is that knowledge not similar to a password? If the phone requires a PIN or passcode after say, 3 attempts, that's important information.
  - killaken2000 8y ago
    Francis Rawls is still in jail after 2 years for not decrypting his hard drive. He's in contempt indefinitely until he decrypts the drive.
    - someone7x 8y ago
      Reminds of that guy in The Crucible that gets crushed with rocks for refusing to take part in the witch trial.
- sathackr 8y ago
  The issue arises when the knowledge of the password itself is incriminating. The 5th amendment prohibits forced self incrimination. Forcing a suspect to divulge information that is directly incriminating will not stand constitutional review, regardless of the nature of the information. You have the right to remain silent.
  - nerdponx 8y ago
    What if they have a warrant? At that point I would argue that you are not self-incriminating. In my mind, it's like if the police had a warrant to search your apartment and you didn't let them in.
    - umvi 8y ago
      More like: Police: "We have a warrant for your apartment, let us in" Suspect: "Sorry, I lost the key when I went hiking in the Rocky Mountains, there's no way in. Oh, and be aware that if you try to force your way in more than 5 times, the apartment will catch fire and destroy everything inside" What would happen in this case? Can the suspect be held in contempt?
      - jdc 8y ago
        Probably obstruction of justice IMHO
        int_19h 8y ago
        Doesn't that require intent and planning? If the arrangements were in place before the crime was even planned, how can it be obstruction?
        nerdponx 8y ago
        It's obstruction if they didn't actually lose the key, or the deliberately "lost" the key.
      - 8y ago
- nerdponx 8y ago
  It will be interesting what happens at airports. Nominally, the reason they check your bag at the airport is for security. But in the process they can find all sorts of other stuff that isn't dangerous to fly with but is illegal, e.g. marijuana. So the whole thing becomes an avenue to warrantless search. You can't make the same argument about a computer or phone -- you can't bring down a plane or hurt anyone by having certain pictures on your hard drive. Anything you could do with a phone (e.g. trigger a bomb) would require some other physical infiltration, which hopefully would be caught by all the scanning and searching of people and baggage that we do already. So I would hope that a sensible explicitly disallows this "airport loophole" in the process of bringing phone search into the normal legal process of warranted search... but I am doubtful. There are powerful people in the USA, UK, Australia, etc. would love the unfettered ability to search the phone of every air traveler.
  - sokoloff 8y ago
    How does TSA know your giant laptop is really a laptop and not a bomb inside a laptop case? One indicator is whether it powers up and you can log into it. (I'm not saying I love that answer, but it's a better indicator than just popping up a backlit lock screen [which could be a sheet of acetate with a fixed image])
    - topmonk 8y ago
      A raspberry pi could display a login prompt. The rest could be contraband.
- brian-armstrong 8y ago
  Aren't you confusing property with ideas? I agree, the physical phone itself should be part of discovery. Authorities should be allowed to physically disassemble the phone and inspect its insides or run forensic tests on it. The content on the phone is a matter of interpretation, subject to proper decryption. It is just an idea, no different from decoding ideas in somebody's journal. It makes no sense to talk about discovery of this.
  - sonnyblarney 8y ago
    1's and 0's representing words are the same thing as ink blots in the form of characters representing words.
    - int_19h 8y ago
      So, if you encrypt your paper journal, can you be compelled to decrypt it?
- AdrianB1 8y ago
  It it's the same as searching the car, open the door and search. Break the window, if needed. But it is more like searching your brain, which is the whole point of the 5th, it seems. On your argumentation, there is no 5th. You can get a warrant to search someone's mind by asking questions they need to answer, even if it's self-incriminating. End of story.
- anigbrowl 8y ago
  I think you need to read the court opinion, because you're only addressing one half of it. There's a 5th amendment aspect too and that's a lot harder to overcome.
- tokyodude 8y ago
  And in 20/30 years when the phone is embedded in your brain? A phone isn't a car. It's an extension of my brain. I use it to store memories that I offload from my brain. As an example I used to have 50 to 100 phone numbers memorized. Now I have zero because they are on the external part of my brain. I see this as no different than having to decode the secret code in the ledger. You can see the encrypted data. I'm not required to decrypt it. (or am I? I don't know the law on coded ledgers)
- pc86 8y ago
  > If you have evidence of a crime on your phone, it must be part of the process. Then access it. If you can't access, do good police work and (legally) acquire access to it. If the entire success of your case hinges on convincing someone to incriminate themselves by giving you the password, build a better case before arresting them or tipping them off to the investigation. > Ultimately, this will be no different than searching your car. This can be done 100% with the accused's intervention. A LEO can see something that gives them probable cause for a warrant. A locksmith can open the car or the LEO can simply break the window and unlock it. Just because the police don't have the technical ability to get into a phone without the user's intervention doesn't mean that person should be forced to divulge information that could incriminate them.
gammateam 8y ago
The only way for this to stand is if the 9th circuit upholds the ruling and the Supreme Court declines to hear it Another circuit will disagree with the 9th circuit and the supreme is forced to take the case, they wont uphold a novel 9th circuit ruling There isnt an interpretation of the constitution possible for them to, and a the composition of the court makes this even more unlikely to pluck from thin air