10 ms·

Police push legal boundaries to get into cellphones

93 points by timemachine 7y ago

jacamat 7y ago
jail is not that bad.
- leesalminen 7y ago
  Depends on which jail ;)
- dang 7y ago
  Maybe not, but please don't post unsubstantive comments here.
joshuaheard 7y ago
He went to jail for contempt of court for ignoring a court order, not just disobeying police to unlock his phone. This would be true for any court order. In the article, it appears the police had probable cause for the warrant to search the phone by the text popup that appeared on the locked phone.
- gdhbcc 7y ago
  If a court order said he had to confess, and arrested him for not doing so, would you say that is a lawful order? And if not, what is the difference between being ordered to confess and being ordered to produce evidence harmful to yourself? Courts should have the right to seek evidence, no one is disputing that, nor is anyone disputing the rights of the court to seek that evidence unmolested, but there is a difference between seeking evidence and mandating compliance. As far as I am concerned courts should not have any right to compel any action, particularly specific action. They should only have a right to compel inaction. In short, the court can issue warrants that permit their officers to conduct actions that would otherwise be illegal, for example entering my house without my permission, and they may even compel me to stand outside and not interfere while they do so, but they should never be able to compel me to open the door for them.
  - leesalminen 7y ago
    > but they should never be able to compel me to open the door for them. If they have a warrant and don’t open the door, they will break it down with a sledge hammer.
    - yardie 7y ago
      Use the sledgehammer on the phone then. I'm sure shattered glass and bits of silicon will give them all the evidence they need.
    - gdhbcc 7y ago
      And they are welcome to do so, so long as I am made whole at the end of the investigation if no evidence is found.
  - nitwit005 7y ago
    > And if not, what is the difference between being ordered to confess and being ordered to produce evidence harmful to yourself? One has constitutional protection from the fifth amendment and the other doesn't.
  - joshuaheard 7y ago
    There is a process to quash an unlawful warrant. You can't just refuse to obey.
- yardie 7y ago
  You and I read the same article and yet reached vastly different conclusions. Is the passcode speech? Is the passcode protected under the 5th amendment. Because they can't compel you to testify. Remember, it's up to the prosecutor to build on the evidence they have. If they don't have your phone they don't have much evidence. And it is my belief your passcode is your thoughts. What if he gave them the codes? They would have noodled around his phone until they found something else. That traffic stop could have become felony possession and that felony possession could have been upgraded to felony distribution if someone had sent him a message to pick up something on the way back.
  - joshuaheard 7y ago
    That's a great argument, but he didn't make it. As I said above, if you feel the warrant would violate your First or Fifth Amendment rights, there is a process for that. You can't just ignore a court order, or you will end up in jail.
oarabbus_ 7y ago
>The officers demanded his passcodes, warning him they’d get warrants to search the cellphones. Montanez suspected that police were trying to fish for evidence of illegal activity. He also didn’t want them seeing more personal things, including intimate pictures of his girlfriend. The police have a right to attempt you trick you into giving up information you shouldn't. Plead the fifth/don't talk to the police. >So he refused, and was locked up on the drug and firearms charges. This is fair. >Five days later, after Montanez was bailed out of jail, a deputy from the Hillsborough County Sheriff’s Office tracked him down, handed him the warrants and demanded the phone passcodes. Again, Montanez refused. Prosecutors went to a judge, who ordered him locked up again for contempt of court. This is also fair. The police acquired a warrant and presented the warrant legally. The man refused, committing the crime of contempt of court, which is a fair and just punishment for refusing to heed a court-issued warrant. It's also within his right to decide to serve the time for contempt of court rather than providing the password. Yes, there are lots of bigger issues touched upon in this story, but the headline seems sensationalist. Didn't the police do the right thing by obtaining a warrant for the password?
- RandomBacon 7y ago
  I agree with you, however... > spending 44 days behind bars before the THC and gun charges were dropped, the contempt order got tossed and he pleaded guilty to a misdemeanor pot charge. And yet he regrets nothing, because he now sees his defiance as taking a stand against the abuse of his rights. However failing to comply with the police and then a court order seemed to work in his favor. I imagine the consequences of him committing felonies and allowing the police to get even more evidence would have been worse than just 44 days and a misdemeanor and whatever he paid his attorneys.
- iandanforth 7y ago
  Legal yes, right no. In many situations you cannot be forced to provide evidence that would be used against you or information which would lead to such evidence. I would go further and say that in all cases you shouldn't be required to provide such information. It should be recognized as a basic right that you do not have to aid those who are trying to convict you of a crime. Our system of justice is adversarial for good reason and it is explicit in forcing those with the most power to limit the use of that power for the benefit of the accused. Without those checks and balances (and frequently even with them) abuse of that power, under the auspices of a greater good, would be common.
jimbob45 7y ago
Well, in my opinion, the closest analogue would be mail. Can the police search through your mail? https://www.legalmatch.com/law-library/article/can-the-police-open-your-mail.html https://www.legalmatch.com/law-library/article/can-the-polic... The answer is yes, with a search warrant. Therefore, I see no reason that a phone should be treated differently.
- sridca 7y ago
  There were several formats developed for recording video on optical discs before the DVD. Optical recording technology was invented by David Paul Gregg and James Russell in 1958 and first patented in 1961. A consumer optical disc data format known as LaserDisc was developed in the United States, and first came to market in Atlanta, Georgia in 1978. It used much larger discs than the later formats. Due to the high cost of players and discs, consumer adoption of LaserDisc was very low in both North America and Europe, and was not widely used anywhere outside Japan and the more affluent areas of Southeast Asia, such as Hong-Kong, Singapore, Malaysia and Taiwan.
- yardie 7y ago
  If the police want to open my phone I will supply them with the pentalobe driver to do so.
- canidiarus 7y ago
  Do people normally mail their pictures to themselves? Mail is typically limited to sender -> receiver. The closest analogue to me would be a diary and unfortunately not so clear-cut: https://blogs.findlaw.com/law_and_life/2017/06/legally-is-my-diary-or-personal-journal-confidential.html https://blogs.findlaw.com/law_and_life/2017/06/legally-is-my...
- Timpy 7y ago
  This comparison is ridiculous, the amount of private information you can gather from my mail is incomparable to the amount of information you can gather from my phone. My phone remembers more about me than I do. Conversations I don't recall having, places I don't recall going to. Open up your Google timeline and scroll through it, you'll see plenty of things that make you go "Huh I wonder what I was doing that day."
metalliqaz 7y ago
Plausible deniability. Encryption systems that are designed for countering a hostile threat that can force you to divulge the key have two passwords. One opens your real data, one opens a decoy. It would be nice is phones had that feature.
- vegiraghav 7y ago
  Hello Irene Adler
LifeLiverTransp 7y ago
What if i programmed a phone to no reveal data, even with the correct passphrase, as long as the user is seen under pressure by law enforcement or society to reveal data?
- metalliqaz 7y ago
  and how would you program that?
  - LifeLiverTransp 7y ago
    Patternmatch on daily habbits? if daily habbits do not resume, and normal social interaction does not happen for n days, no phone acces for 2*n days for you.
  - rolph 7y ago
    alexa, hide ! -ok ill let you know how to find me when i hear the safe word
- Wistar 7y ago
  I am having a hard time imagining how the system can be made to understand whether a user is under pressure to reveal data. Perhaps a spoken phrase from the user that initiates the lock within the lock?
  - manfredo 7y ago
    An easy mechanism is have two passwords. The real password that displays unredacted data, and a contingency password that only reveals benign information.
    - Wistar 7y ago
      ... or a contingency password that causes the phone to immediately be wiped clean and then unlocks? Still doesn't address the notion of a system that "knows" the user is under duress without some sort of overt signal or action by the user.
LinuxBender 7y ago
This seems to me like a technical problem. Assuming one must really store sensitive things on smart phones, there should be a way to do this AND allowing one to share the phone unlocked with an adversary without risk of leaking data. Multiple unlock codes maybe? Maybe a tertiary duress code that starts a timer and performs predefined actions after {n} minutes. i.e. send control code to a server, notify friends, family, lawyer you are under duress with GPS coordinates, wipe phone at the risk of destroying evidence, start sending audio to youtube, transfer / delegate data to a different predefined device, etc... Might be useful if you are being mugged.
ThrustVectoring 7y ago
IMO, the legal landscape here hasn't kept up with changing social conditions. A huge amount of social and personal activity is now getting mediated through technology, and legal protections have not been correspondingly extended. Cell phones routinely keep a log of who you've been talking to, when, and a big chunk of the actual contents. They also will often collect location history, or broadcast the location to third parties as part of their normal operation.
squarefoot 7y ago
Phone OSes should allow the user to exercise plausible deniability by having dual or multiple passwords or other physical means of telling the phone to unlock only in a safe mode that will reveal innocuous documents or photos, job, relatives and friends contacts, and possibly let the inbox and outbox contain only conversations from clean numbers. If a cop signals to pull over, a short bossa nova tap on the phone case might get detected by the accelerometer and trigger that safe mode, until the user tells the phone the emergency is over by tapping a pataflafla followed by a paradiddle diddle (just kidding, but you get the point:^) Not that I condone any illegal use of cellphones, but often a wrong assumption by a police officer paired by his perceived omnipotence can easily escalate to a level much worse than the "crimes" they intended to prevent.
- idDriven 7y ago
  Phone maker Xiaomi's Miui version of Android has a feature much like this called Second Space where you can create a clean copy of the OS and only import what data you choose from your primary account. Call and SMS history is shared but not contacts, but SMS being insecure an App like telegram used in first/primary space would be more secure anyway. I haven't really used the feature yet but thought it was a really cool idea. https://www.pcsteps.com/18454-second-android-user-account-xiaomi-second-space/ https://www.pcsteps.com/18454-second-android-user-account-xi...
  - Balgair 7y ago
    Blackphone2 as well: https://www.silentcircle.com/products-and-solutions/blackphone2/ https://www.silentcircle.com/products-and-solutions/blackpho...

93 points by timemachine 7y ago

jacamat 7y ago

jail is not that bad.

leesalminen 7y ago
Depends on which jail ;)
dang 7y ago
Maybe not, but please don't post unsubstantive comments here.

joshuaheard 7y ago

He went to jail for contempt of court for ignoring a court order, not just disobeying police to unlock his phone. This would be true for any court order. In the article, it appears the police had probable cause for the warrant to search the phone by the text popup that appeared on the locked phone.

gdhbcc 7y ago
If a court order said he had to confess, and arrested him for not doing so, would you say that is a lawful order? And if not, what is the difference between being ordered to confess and being ordered to produce evidence harmful to yourself? Courts should have the right to seek evidence, no one is disputing that, nor is anyone disputing the rights of the court to seek that evidence unmolested, but there is a difference between seeking evidence and mandating compliance. As far as I am concerned courts should not have any right to compel any action, particularly specific action. They should only have a right to compel inaction. In short, the court can issue warrants that permit their officers to conduct actions that would otherwise be illegal, for example entering my house without my permission, and they may even compel me to stand outside and not interfere while they do so, but they should never be able to compel me to open the door for them.
- leesalminen 7y ago
  > but they should never be able to compel me to open the door for them. If they have a warrant and don’t open the door, they will break it down with a sledge hammer.
  - yardie 7y ago
    Use the sledgehammer on the phone then. I'm sure shattered glass and bits of silicon will give them all the evidence they need.
  - gdhbcc 7y ago
    And they are welcome to do so, so long as I am made whole at the end of the investigation if no evidence is found.
- nitwit005 7y ago
  > And if not, what is the difference between being ordered to confess and being ordered to produce evidence harmful to yourself? One has constitutional protection from the fifth amendment and the other doesn't.
- joshuaheard 7y ago
  There is a process to quash an unlawful warrant. You can't just refuse to obey.
yardie 7y ago
You and I read the same article and yet reached vastly different conclusions. Is the passcode speech? Is the passcode protected under the 5th amendment. Because they can't compel you to testify. Remember, it's up to the prosecutor to build on the evidence they have. If they don't have your phone they don't have much evidence. And it is my belief your passcode is your thoughts. What if he gave them the codes? They would have noodled around his phone until they found something else. That traffic stop could have become felony possession and that felony possession could have been upgraded to felony distribution if someone had sent him a message to pick up something on the way back.
- joshuaheard 7y ago
  That's a great argument, but he didn't make it. As I said above, if you feel the warrant would violate your First or Fifth Amendment rights, there is a process for that. You can't just ignore a court order, or you will end up in jail.

oarabbus_ 7y ago

>The officers demanded his passcodes, warning him they’d get warrants to search the cellphones. Montanez suspected that police were trying to fish for evidence of illegal activity. He also didn’t want them seeing more personal things, including intimate pictures of his girlfriend. The police have a right to attempt you trick you into giving up information you shouldn't. Plead the fifth/don't talk to the police. >So he refused, and was locked up on the drug and firearms charges. This is fair. >Five days later, after Montanez was bailed out of jail, a deputy from the Hillsborough County Sheriff’s Office tracked him down, handed him the warrants and demanded the phone passcodes. Again, Montanez refused. Prosecutors went to a judge, who ordered him locked up again for contempt of court. This is also fair. The police acquired a warrant and presented the warrant legally. The man refused, committing the crime of contempt of court, which is a fair and just punishment for refusing to heed a court-issued warrant. It's also within his right to decide to serve the time for contempt of court rather than providing the password. Yes, there are lots of bigger issues touched upon in this story, but the headline seems sensationalist. Didn't the police do the right thing by obtaining a warrant for the password?

RandomBacon 7y ago
I agree with you, however... > spending 44 days behind bars before the THC and gun charges were dropped, the contempt order got tossed and he pleaded guilty to a misdemeanor pot charge. And yet he regrets nothing, because he now sees his defiance as taking a stand against the abuse of his rights. However failing to comply with the police and then a court order seemed to work in his favor. I imagine the consequences of him committing felonies and allowing the police to get even more evidence would have been worse than just 44 days and a misdemeanor and whatever he paid his attorneys.
iandanforth 7y ago
Legal yes, right no. In many situations you cannot be forced to provide evidence that would be used against you or information which would lead to such evidence. I would go further and say that in all cases you shouldn't be required to provide such information. It should be recognized as a basic right that you do not have to aid those who are trying to convict you of a crime. Our system of justice is adversarial for good reason and it is explicit in forcing those with the most power to limit the use of that power for the benefit of the accused. Without those checks and balances (and frequently even with them) abuse of that power, under the auspices of a greater good, would be common.

jimbob45 7y ago

Well, in my opinion, the closest analogue would be mail. Can the police search through your mail? https://www.legalmatch.com/law-library/article/can-the-police-open-your-mail.html https://www.legalmatch.com/law-library/article/can-the-polic... The answer is yes, with a search warrant. Therefore, I see no reason that a phone should be treated differently.

sridca 7y ago
There were several formats developed for recording video on optical discs before the DVD. Optical recording technology was invented by David Paul Gregg and James Russell in 1958 and first patented in 1961. A consumer optical disc data format known as LaserDisc was developed in the United States, and first came to market in Atlanta, Georgia in 1978. It used much larger discs than the later formats. Due to the high cost of players and discs, consumer adoption of LaserDisc was very low in both North America and Europe, and was not widely used anywhere outside Japan and the more affluent areas of Southeast Asia, such as Hong-Kong, Singapore, Malaysia and Taiwan.
yardie 7y ago
If the police want to open my phone I will supply them with the pentalobe driver to do so.
canidiarus 7y ago
Do people normally mail their pictures to themselves? Mail is typically limited to sender -> receiver. The closest analogue to me would be a diary and unfortunately not so clear-cut: https://blogs.findlaw.com/law_and_life/2017/06/legally-is-my-diary-or-personal-journal-confidential.html https://blogs.findlaw.com/law_and_life/2017/06/legally-is-my...
Timpy 7y ago
This comparison is ridiculous, the amount of private information you can gather from my mail is incomparable to the amount of information you can gather from my phone. My phone remembers more about me than I do. Conversations I don't recall having, places I don't recall going to. Open up your Google timeline and scroll through it, you'll see plenty of things that make you go "Huh I wonder what I was doing that day."

metalliqaz 7y ago

Plausible deniability. Encryption systems that are designed for countering a hostile threat that can force you to divulge the key have two passwords. One opens your real data, one opens a decoy. It would be nice is phones had that feature.

vegiraghav 7y ago
Hello Irene Adler

LifeLiverTransp 7y ago

What if i programmed a phone to no reveal data, even with the correct passphrase, as long as the user is seen under pressure by law enforcement or society to reveal data?

metalliqaz 7y ago
and how would you program that?
- LifeLiverTransp 7y ago
  Patternmatch on daily habbits? if daily habbits do not resume, and normal social interaction does not happen for n days, no phone acces for 2*n days for you.
- rolph 7y ago
  alexa, hide ! -ok ill let you know how to find me when i hear the safe word
Wistar 7y ago
I am having a hard time imagining how the system can be made to understand whether a user is under pressure to reveal data. Perhaps a spoken phrase from the user that initiates the lock within the lock?
- manfredo 7y ago
  An easy mechanism is have two passwords. The real password that displays unredacted data, and a contingency password that only reveals benign information.
  - Wistar 7y ago
    ... or a contingency password that causes the phone to immediately be wiped clean and then unlocks? Still doesn't address the notion of a system that "knows" the user is under duress without some sort of overt signal or action by the user.

LinuxBender 7y ago

This seems to me like a technical problem. Assuming one must really store sensitive things on smart phones, there should be a way to do this AND allowing one to share the phone unlocked with an adversary without risk of leaking data. Multiple unlock codes maybe? Maybe a tertiary duress code that starts a timer and performs predefined actions after {n} minutes. i.e. send control code to a server, notify friends, family, lawyer you are under duress with GPS coordinates, wipe phone at the risk of destroying evidence, start sending audio to youtube, transfer / delegate data to a different predefined device, etc... Might be useful if you are being mugged.

ThrustVectoring 7y ago

IMO, the legal landscape here hasn't kept up with changing social conditions. A huge amount of social and personal activity is now getting mediated through technology, and legal protections have not been correspondingly extended. Cell phones routinely keep a log of who you've been talking to, when, and a big chunk of the actual contents. They also will often collect location history, or broadcast the location to third parties as part of their normal operation.

squarefoot 7y ago

Phone OSes should allow the user to exercise plausible deniability by having dual or multiple passwords or other physical means of telling the phone to unlock only in a safe mode that will reveal innocuous documents or photos, job, relatives and friends contacts, and possibly let the inbox and outbox contain only conversations from clean numbers. If a cop signals to pull over, a short bossa nova tap on the phone case might get detected by the accelerometer and trigger that safe mode, until the user tells the phone the emergency is over by tapping a pataflafla followed by a paradiddle diddle (just kidding, but you get the point:^) Not that I condone any illegal use of cellphones, but often a wrong assumption by a police officer paired by his perceived omnipotence can easily escalate to a level much worse than the "crimes" they intended to prevent.

idDriven 7y ago
Phone maker Xiaomi's Miui version of Android has a feature much like this called Second Space where you can create a clean copy of the OS and only import what data you choose from your primary account. Call and SMS history is shared but not contacts, but SMS being insecure an App like telegram used in first/primary space would be more secure anyway. I haven't really used the feature yet but thought it was a really cool idea. https://www.pcsteps.com/18454-second-android-user-account-xiaomi-second-space/ https://www.pcsteps.com/18454-second-android-user-account-xi...
- Balgair 7y ago
  Blackphone2 as well: https://www.silentcircle.com/products-and-solutions/blackphone2/ https://www.silentcircle.com/products-and-solutions/blackpho...