9 ms·
NJ Supreme Court: No 5th Amendment right not to unlock your phone
- recursivedoubts 6y agoI think that covid has pretty well killed the idea that the constitution is relevant in any situation the government feels strongly about.
- ntsplnkv2 6y agoThe government doesn't feel strongly about anything, largely due to inconsistent leadership in the current executive branch and legislative branch.
- ceejayoz 6y agoCOVID just demonstrates there's a "we thought y'all would be sensible" hole in the Founders' thought processes. Quarantines have been an accepted thing for millennia - George Washington himself instituted a smallpox one (and a innoculation campaign!) - and the quarantines have all been state-level thus far which the Tenth Amendment offers quite a bit of wiggle room for. https://www.nationalgeographic.com/history/2020/04/george-washington-beat-smallpox-epidemic-with-controversial-inoculations/ https://www.nationalgeographic.com/history/2020/04/george-wa... Business licenses, state-run liquor stores, handwashing requirements at restaurants, mandatory vaccination to go to school, even masks being required in surgery have all been fine constitutionally.
- xxpor 6y agoAnd there doesn't seem to be any difference between the restrictions now vs what we saw in 1918.
- CobrastanJorji 6y agoA newspaper editor was arrested for under the Sedition Act for accusing Washington of incompetence. The whole "what the Founders thought about the Constitution" thing has always been a bit of a stretch.
- miles 6y agoIt was Adams, not Washington, and the Sedition Act was repealed after Jefferson became president: United States v. Thomas Cooper https://www.archives.gov/education/lessons/sedition-case https://www.archives.gov/education/lessons/sedition-case
- CobrastanJorji 6y agoDifferent newspaper editor. That was the Thomas Cooper case. Benjamin Franklin Bache was also a newspaper editor who was arrested for seditiously slandering president Washington (and also Adams).
- miles 6y ago> Benjamin Franklin Bache was also a newspaper editor who was arrested for seditiously slandering president Washington (and also Adams). Bache certainly antagonized Washington, but he was arrested in June 1798 for criticizing Adams: When Benjamin Franklin’s Grandson was Jailed for Criticizing President Adams https://firstamendmentwatch.org/when-benjamin-franklins-grandson-was-jailed-for-critiquing-his-president-part-i/ https://firstamendmentwatch.org/when-benjamin-franklins-gran... Benjamin Franklin Bache https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/benjamin-franklin-bache/ https://www.mountvernon.org/library/digitalhistory/digital-e...
- stephenhuey 6y agoLast night I literally reached the midpoint of a biography on Dr. Benjamin Rush by Fried and after reading all the trouble the doctor took to educate Washington and the Continental Congress (and even fellow physicians) and advocate vociferously time and time again for smallpox inoculation and various other public health changes, I feel a bit of angst about making sure people know Dr. Rush should receive the credit!
- disposekinetics 6y agoI hadn't considered it this way, but you are correct in that the COVID-19 crisis has been putting a lot of stress on the limits of government in the constitution. It also seems clear that federalism and individual liberty are at odds with the effective fighting of highly contagious diseases in a coordinated fashion. I do not want to give the government power because they have a track record of abuse, but how does a society fight something communicable like this?
- dariusj18 6y agoNot to be overly dramatic, but the US has been on a recent "You die for My freedom," kick.
- cma 6y agoEven Hayek said epidemics were an obvious exception to most of his economic ideology and called for government planning: https://twitter.com/nntaleb/status/1274130684337172481 https://twitter.com/nntaleb/status/1274130684337172481 Mostly we just have had anti-biotics, effective vaccines, etc. for everything deadly and have basically forgotten how to govern in the face of the massive externalities presented by communicable diseases. Whether someone thinks covid is severe enough to justify which particular actions is one thing, but if we had something like an incurable smallpox or measles going around there would be a lot more consensus on government action.
- vladus2000 6y agoWould we? I am not convinced the amount of idiocy would be low enough to prevent problems. Most of the arguments I have seen have been "this is a hoax" type or other arguments not based in reality. I agree there is an arugement to be made over whether or not to close based on death rates and whatnot, but I do not hear those arguments that much. The people screaming that it is a hoax and its their freedom I generally assume would react similarly to a even more severe crisis. Maybe I am over estimating their numbers based on the fact that they are loud, but assuming they will realize it is really serious in the cases you describe is a leap I am not willing to make.
- colechristensen 6y agoWhy? The constitution gives broad powers to regulate commerce and you don’t really see any of the stay at home or mask orders actually being enforced outside commercial regulation. When I read the local orders they don’t really have teeth, or are written in a way that it is impossible to actually violate them, outside commercial regulation.
- kube-system 6y agoI don't see how this assertion is relevant to the topic at hand here -- but how do you think the government has violated the constitution pertaining to covid? There are certainly a lot of people coming out of the woodwork who are under the misconceptions that "the constitution" prevents the government from requiring their citizens do anything, but I haven't heard any specific claims about violations, let alone a citation of relevant case law. Public health regulations, especially at the state level, are well within the powers legal under the constitution.
- kolbe 6y agoTrump’s executive order for the latest stimulus. The stimulus programs are clearly legislative, and as such are constitutionally the duty of congress. He even watched congress debate and negotiate a stimulus package, didn’t like their result, and with an unconstitutional EO, spent a trillion dollars. The choices to disallow religions institutions from congregating while allowing BLM protests seems like it’s a ploy to suppress religion and not an effort to protect people as well.
- dwater 6y agoThe BLM protests are all outdoors and have not been shown to be superspreader events. Church services held indoors have been shown many times to be superspreader events. Your argument that any government anywhere in the US tried to use the pandemic to suppress religion is not supported by the evidence. https://www.click2houston.com/health/2020/05/29/what-are-covid-19-super-spreaders-and-why-are-church-choir-lofts-on-the-list/ https://www.click2houston.com/health/2020/05/29/what-are-cov... https://www.businessinsider.com/church-oregon-largest-coronavirus-outbreak-superspreading-2020-6?op=1 https://www.businessinsider.com/church-oregon-largest-corona... https://www.news4jax.com/i-team/2020/08/04/jacksonville-church-members-experienced-covid-19-symptoms-before-florida-reported-its-1st-cases/ https://www.news4jax.com/i-team/2020/08/04/jacksonville-chur... https://www.cnn.com/2020/08/05/health/ohio-church-coronavirus-spread/index.html https://www.cnn.com/2020/08/05/health/ohio-church-coronaviru...
- kolbe 6y ago
- deleted 6y ago[deleted]
- martinflack 6y agoIt's moreso that constitutional jurisprudence is more contextual to civic emergency than most people appreciate.
- icedchai 6y agoIf that was true, we would've had a totalitarian-style lock down back in late Feb or early March. That didn't happen, obviously. Instead, the lack of a decisive, coordinated response, and "we'll leave it to the states...." is what caused all of this to get much, much worse.
- mindslight 6y agoWickard vs Filburn did that long ago. My own judgement is that every single amendment in the Bill of Rights has been effectively nullified, justified by the courts. But still, I don't see how emergency public health orders go against the Constitution.
- elliekelly 6y agoIt seems there is no clear consensus on whether, and in what circumstances, the fifth amendment applies to phone passcodes: > Earlier this year, a Philadelphia man was released from jail after four years of being held in contempt in connection with a child-pornography case. A federal appeals court rejected his argument that the Fifth Amendment gave him the right to refuse to unlock hard drives found in his possession. A Vermont federal court reached the same conclusion in 2009—as did a Colorado federal court in 2012, a Virginia state court in 2014, and the Massachusetts Supreme Judicial Court in 2014. But other courts in Florida, Wisconsin, and Pennsylvania have reached the opposite conclusion, holding that forcing people to provide computer or smartphone passwords would violate the Fifth Amendment.
- bitxbitxbitcoin 6y agoThis is going to have to be decided in US Supreme Court and I hope it happens sooner rather than later.
- supernova87a 6y agoThat is the opposite of the Supreme Court's approach. They want this to be argued over and the facts laid out as much as possible so the issue is clear, and the conflicting approaches demonstrated (and range of cases that fall into the ambiguity zone), before they step in.
- kube-system 6y agoThe core argument here sounds surprisingly reasonable: that the Hubbell case was a 5th amendment violation because the defendant was asked to make a judgement call about which documents to produce, and that a fishing expedition would be a 4th amendment case.
- LatteLazy 6y agoOf course the unexplored downside of this ruling is that the punishment for forgetting your passcode (password etc) is now life in prison...
- supernova87a 6y agoI think a court would reason that if a phone is being used hour by hour, it's not likely that a person would "forget" that passcode suddenly, and there is a more simple explanation of what's happening.
- searchableguy 6y agoEh. I have forgotten important passwords and lost accounts that I had used for years the next day. It absolutely happens.
- anon9001 6y agoI have too. It's very rare but really disconcerting when it does happen. Human memory is pretty faulty.
- irontinkerer 6y agoI have too. Staring at my keyboard in complete disbelief that a password I used hours before had fallen out of my head. Still amazes me that I can forget things so easily
- nightfly 6y agoI've done this multiple times with SSH key passphrases. Used them for months until it becomes muscle memory. And then one day just can't it at all...
- deleted 6y ago[deleted]
- quotha 6y agoKind of what I was thinking-even if you don’t forget, how do you force someone to unlock, and what is possibly a fair punishment? Sounds crazy ruling to me.
- omgwtfbyobbq 6y agoIt'd be nice if there was a form of encryption where a user could provide a secondary password plus a unique hash associated with a file to check if that file is present without opening up access to everything.
- adammunich 6y agoThis is a really neat idea
- SQueeeeeL 6y agoIs it, could easily be used by authoritarian states to check on if any of their citizens have forbidden literature on their computers...
- omgwtfbyobbq 6y agoProvided the person gives up their password. The same applies to any encryption.
- elliekelly 6y agoOr if you could set a “self-destruct” or “wipe disk” passcode. We toyed with a similar idea for ATM cards in Massachusetts after a woman in Boston was abducted, forced to withdraw money from her bank account and then brutally murdered. The idea being that you’d have a PIN and an optional “911 PIN” that would work exactly the same but alert authorities. The PIN would grant you access to accounts and give you money, etc. so anyone holding a gun to your head would be clueless but by entering the 911 PIN authorities would know you were in need of immediate assistance. It was ultimately scrapped because the regulator backed off of requiring additional ATM security once the news stopped covering the murder. But the same concept could be applied to unwanted cellphone intrusions.
- sneak 6y agoThere is a setting on iOS to wipe the device automatically after 10 failed passcode attempts.
- supernova87a 6y agoOf course the whole thing will generate a lot of debate (and has been covered many times before), but I point out a situation that could be regarded as similar: A court can compel you to give blood (or have blood taken from you) if you're suspected of drunk driving. That is not incriminating testimony, but the result may incriminate you. I can see the logic being similar here. Fingerprint, passcode -- courts and law enforcement are clearly testing the limits of where the boundary is.
- elliekelly 6y agoBut a passcode exists only in your mind and you have the right to remain silent. And what if it isn’t your phone but you’ve been compelled to unlock it and you genuinely don’t know the passcode? I don’t think the blood withdrawal is an apt analogy for a password though I do think it makes sense when discussing compelling a fingerprint scan.
- KingMachiavelli 6y ago> For example, if the government doesn't already know who owns a phone, then forcing a defendant to unlock it amounts to forced testimony that the defendant is the owner. It seems that the government has to atleast prove it is your phone.
- elliekelly 6y agoThe government has “proven” a lot of facts in court which later turned out to be false. It’s not a perfect system.
- tzs 6y ago> But a passcode exists only in your mind and you have the right to remain silent There isn't actually a "right to remain silent" per se in US law. The various right to silence all have limitations. For example, suppose a smuggler shoots and kills a bounty hunter in a cantina. The bartender tells investigators you were there and are the only person who had a clear view of what happened. Investigators want you to tell them what you saw. However, you are on parole and being in a cantina violates your terms of parole. If you testify about the shooting that is tantamount to admitting to a parole violation, and it is back to prison for you so you try to invoke your Fifth Amendment right against self-incrimination. Prosecutors then grant you immunity for any parole violations that occurred while you were at the cantina. Your testimony is no longer be self-incriminating, and can now be compelled.
- quotha 6y agoDo you still have the right to remain silent?
- GloriousKoji 6y agoNo, it will probably count as contempt.
- coolspot 6y agoAFAIK You have a right to remain silent during your arrest and before you face a judge. If court orders you to do something (legal ofc) you will have to do it, if they ask you a question - you will have to answer it. Except something that would incriminate you or your immediate relatives.
- searchableguy 6y agoIs there anything for android that resets phone under a specified duration if not unlocked or used?
- dilippkumar 6y ago> New Jersey's Supreme Court has ruled that compelling a suspect to unlock his or her cell phone doesn't violate the Fifth Amendment. For those who couldn't be bothered to think through the triple negations in the title.
- sebazzz 6y agoNow it is just a matter of time before Apple and other manufactures will implement a 'fake PIN' just like Truecrypt/Veracrypt backup password feature: A void unused phone profile with a separate data store. Looks legit, but keeps the actual interesting data locked away.
- GloriousKoji 6y agoWe can't even get normal multiple profiles, much less one that's a honey pot.
- colejohnson66 6y agoThat’s illegal too. If the police find out you provided them fake data, that’s the crime of lying to police.
- sebazzz 6y agoThen it is up to the implementation to make it look legit.
- deleted 6y ago[deleted]
- AnCapAndrew 6y agoBreaking: The Mafia decides that it's okay for the Mafia to force you to unlock your phone.