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The warrant that required his passcode seems like a clear Fifth Amendment violation.

oarabbus_ 7y ago
If the cops present a warrant to search your house, and you know you have incriminating evidence in your home and you refuse to let the cops in, is the warrant a violation of your Fifth Amendment rights?
- mikeash 7y ago
  No, but as far as I know you won’t be prosecuted for refusing entry. The police will just force their way in. Strong crypto means the police can’t force their way in. But that doesn’t mean they should sprout new rights to force people to help.
- Jaepa 7y ago
  If you have a coded book, do you have to read it to them? Obviously you will be detained if you try and prevent lawful execution of a search warrant. But its kind of a false equivalency saw that not providing a passcode is the same. From the Justice John Paul Stevens dissent from Justice John Paul Stevens (487 U.S. 201) A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe — by word or deed. This confirmed in UNITED STATES v. HUBBELL. That being said it has been challenged, and ruled on both sides do to the somewhat ambiguous framing. https://www.law.cornell.edu/supremecourt/text/487/201 https://www.law.cornell.edu/supremecourt/text/487/201 https://caselaw.findlaw.com/us-supreme-court/530/27.html https://caselaw.findlaw.com/us-supreme-court/530/27.html
alistairSH 7y ago
To further expound on this, the state cannot compel a person to testify against themselves. Is forcing the revelation of a passcode more akin to speech, or is it more akin to providing a physical key? The former is currently illegal, but being challenged in many jurisdictions. The latter is legal.
- mikeash 7y ago
  Can you be forced to provide a physical key? They’ll break the door down if they have to.
  - Jaepa 7y ago
    Yes. Generally the delineation if its something you could have on you is allowed, but what is in your head is not. Biometrics are generally seen as something you have on you, so fingerprints are generally seen as less secure than passcodes.
  - alistairSH 7y ago
    Jaepa covered it. The state is allowed to brute-force entry into phone or other device. Thus the simultaneous push for Apple and others to provide back-doors. And large sums of money paid by the FBI to Israeli(?) IT firms to crack phones.
rayiner 7y ago
The Fifth Amendment says: > No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. He’s not being asked to testify against himself at trial, which is literally what “being a witness” means. The Fifth Amendment has already been stretched far beyond its text, to encompass lots of scenarios where a person is ordered to reveal potentially incriminating information. It’s being turned into something very different from what it was written as—a general purpose right not to be compelled to aid in your own prosecution.
- kevin_b_er 7y ago
  No he's just being asked to forced to provide speech in a legal context. Just because they can demand it outside of a trial doesn't magically make it acceptable. It is why it includes compelled speech against yourself outside of the courtroom.
- mikeash 7y ago
  The Fifth only applies during a trial? So the police can coerce a confession and it’s all above-board?
  - oarabbus_ 7y ago
    Coerced confessions will be inadmissible during the trial phase
    - mikeash 7y ago
      But the police can still force you to confess and tell them where all the bodies are buried?

If the cops present a warrant to search your house, and you know you have incriminating evidence in your home and you refuse to let the cops in, is the warrant a violation of your Fifth Amendment rights?

mikeash 7y ago
No, but as far as I know you won’t be prosecuted for refusing entry. The police will just force their way in. Strong crypto means the police can’t force their way in. But that doesn’t mean they should sprout new rights to force people to help.
Jaepa 7y ago
If you have a coded book, do you have to read it to them? Obviously you will be detained if you try and prevent lawful execution of a search warrant. But its kind of a false equivalency saw that not providing a passcode is the same. From the Justice John Paul Stevens dissent from Justice John Paul Stevens (487 U.S. 201) A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe — by word or deed. This confirmed in UNITED STATES v. HUBBELL. That being said it has been challenged, and ruled on both sides do to the somewhat ambiguous framing. https://www.law.cornell.edu/supremecourt/text/487/201 https://www.law.cornell.edu/supremecourt/text/487/201 https://caselaw.findlaw.com/us-supreme-court/530/27.html https://caselaw.findlaw.com/us-supreme-court/530/27.html

alistairSH 7y ago

To further expound on this, the state cannot compel a person to testify against themselves. Is forcing the revelation of a passcode more akin to speech, or is it more akin to providing a physical key? The former is currently illegal, but being challenged in many jurisdictions. The latter is legal.

mikeash 7y ago
Can you be forced to provide a physical key? They’ll break the door down if they have to.
- Jaepa 7y ago
  Yes. Generally the delineation if its something you could have on you is allowed, but what is in your head is not. Biometrics are generally seen as something you have on you, so fingerprints are generally seen as less secure than passcodes.
- alistairSH 7y ago
  Jaepa covered it. The state is allowed to brute-force entry into phone or other device. Thus the simultaneous push for Apple and others to provide back-doors. And large sums of money paid by the FBI to Israeli(?) IT firms to crack phones.

rayiner 7y ago

The Fifth Amendment says: > No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. He’s not being asked to testify against himself at trial, which is literally what “being a witness” means. The Fifth Amendment has already been stretched far beyond its text, to encompass lots of scenarios where a person is ordered to reveal potentially incriminating information. It’s being turned into something very different from what it was written as—a general purpose right not to be compelled to aid in your own prosecution.

kevin_b_er 7y ago
No he's just being asked to forced to provide speech in a legal context. Just because they can demand it outside of a trial doesn't magically make it acceptable. It is why it includes compelled speech against yourself outside of the courtroom.
mikeash 7y ago
The Fifth only applies during a trial? So the police can coerce a confession and it’s all above-board?
- oarabbus_ 7y ago
  Coerced confessions will be inadmissible during the trial phase
  - mikeash 7y ago
    But the police can still force you to confess and tell them where all the bodies are buried?