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Of 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:

Of 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 ago
But 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 ago
    The 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.
  - hirundo 6y ago
    1. Tatooine is extra jurisdictional territory for 5A. 2. I witnessed it. Han shot first.
- supernova87a 6y ago
  "Testimony" can be interpreted as the physical act of speaking, giving testimony against oneself under questioning. How would being compelled to enter a passcode into a phone be considered speech?
  - elliekelly 6y ago
    “Remain silent” is actually a bit of an oversimplification. We have a right not to incriminate ourselves. If you’ve murdered someone and hidden the murder weapon the government cannot compel you to tell them where you’ve hidden it. That information exists only in your mind and you can’t be forced to incriminate yourself. And they can’t say “okay, remain silent but you must drive us to the location of the murder weapon and point it out” so it’s not about “speech” so much as it is about your right not to assist the government in their prosecution of your own crimes. Now that’s not to say that the location of the murder weapon or the contents of your phone are somehow protected. If the government happens upon the information another way they can use it against you. Even if the way they happen upon it is your own words. If you keep a diary and write “hid murder weapon here” the government can seize your journal as evidence and then use information from your journal to go find more evidence against you. But you don’t have to help them find the information that can be used against you.
- Paul-ish 6y ago
  Eg what if the phone isn't encrypted but just random bits. What do you do when you are compelled to unlock it?
smhenderson 6y ago
In PA where I am they can't force you to give blood. If you refuse you automatically lose your license for a year. And because driving is a privilege, not a right, they are able to compel you with the threat but not force you to comply. I'm not sure how this varies state to state but here the state can't force you to give up your fifth amendment rights, only make life difficult for you if you don't agree to the blood testing.
tunesmith 6y ago
That's the difference between something you have (name, fingerprint, blood, key, device) and something you know (password, pass-phrase, unlock code).
sneak 6y ago
Fingerprint is already treated the same way-no 5A protection. This is why if you click the power button five times, or hold it down for five seconds, it will display the poweroff slider and no longer accept biometric unlock. The pin is now required. Same on boot.
mindslight 6y ago
A counter argument is that personal computing is an extension of the human mind, and therefore data secured on personal computing devices should be subject to the usual 5th amendment protection against self incrimination. I don't foresee courts being sympathetic to this argument any time soon, so it is up to us to design technical solutions that protect this right.

elliekelly 6y ago

But 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 ago
  The 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.
- hirundo 6y ago
  1. Tatooine is extra jurisdictional territory for 5A. 2. I witnessed it. Han shot first.
supernova87a 6y ago
"Testimony" can be interpreted as the physical act of speaking, giving testimony against oneself under questioning. How would being compelled to enter a passcode into a phone be considered speech?
- elliekelly 6y ago
  “Remain silent” is actually a bit of an oversimplification. We have a right not to incriminate ourselves. If you’ve murdered someone and hidden the murder weapon the government cannot compel you to tell them where you’ve hidden it. That information exists only in your mind and you can’t be forced to incriminate yourself. And they can’t say “okay, remain silent but you must drive us to the location of the murder weapon and point it out” so it’s not about “speech” so much as it is about your right not to assist the government in their prosecution of your own crimes. Now that’s not to say that the location of the murder weapon or the contents of your phone are somehow protected. If the government happens upon the information another way they can use it against you. Even if the way they happen upon it is your own words. If you keep a diary and write “hid murder weapon here” the government can seize your journal as evidence and then use information from your journal to go find more evidence against you. But you don’t have to help them find the information that can be used against you.
Paul-ish 6y ago
Eg what if the phone isn't encrypted but just random bits. What do you do when you are compelled to unlock it?

smhenderson 6y ago

In PA where I am they can't force you to give blood. If you refuse you automatically lose your license for a year. And because driving is a privilege, not a right, they are able to compel you with the threat but not force you to comply. I'm not sure how this varies state to state but here the state can't force you to give up your fifth amendment rights, only make life difficult for you if you don't agree to the blood testing.

tunesmith 6y ago

That's the difference between something you have (name, fingerprint, blood, key, device) and something you know (password, pass-phrase, unlock code).

sneak 6y ago

Fingerprint is already treated the same way-no 5A protection. This is why if you click the power button five times, or hold it down for five seconds, it will display the poweroff slider and no longer accept biometric unlock. The pin is now required. Same on boot.

mindslight 6y ago

A counter argument is that personal computing is an extension of the human mind, and therefore data secured on personal computing devices should be subject to the usual 5th amendment protection against self incrimination. I don't foresee courts being sympathetic to this argument any time soon, so it is up to us to design technical solutions that protect this right.