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Police can’t demand you reveal your phone passcode then tell a jury you refused

592 points by oedmarap 5y ago

socrates1998 5y ago
Don't talk to the police. It really isn't in your interests at all. They are there to arrest people, not be your friend. https://www.youtube.com/watch?v=d-7o9xYp7eE https://www.youtube.com/watch?v=d-7o9xYp7eE
emilfihlman 5y ago
But wait, does this say that another court order can compel you to unlock it anyways? That doesn't seem logical at all.
- lelanthran 5y ago
  > But wait, does this say that another court order can compel you to unlock it anyways? If a court can compel speech, then they may as well go ahead and compel the suspect to confess. There's no difference, once the courts compel speech.
  - warkdarrior 5y ago
    It does not make sense to compel someone to confess, because that presumes the person is guilty. But it may make sense to compel someone to share factual information ("the PIN is 1234") or to provide access to information.
    - lelanthran 5y ago
      > But it may make sense to compel someone to share factual information ("the PIN is 1234") or to provide access to information. No, it does not, because "compel" means that if they do not comply you punish them until they do. How are you to know whether or not they actually remember the information you are asking ("The PIN was, err .. 1235?"). This leads to effectively punishing them for not giving the "correct" answer, which is no different from punishing them for not confessing. Once you go down the path of punishing people for not divulging the contents of their mind, you may well just punish them for the crime itself and not bother with a trial. If you allow compelled speech, there is no reason to have a trial.
- postingawayonhn 5y ago
  Right to remain silent vs. a court order to provide access to evidence.
  - Cthulhu_ 5y ago
    Yeah but that access has to come from your brain; doesn't it therefore fall under the 5th amendment that you have the right to remain silent and something something self-incrimination? I mean I'm trying to think of other instances of getting access to evidence, and the only things I can think of is companies having to provide certain administrative documentation that may not even be their own. But that's probably me lacking imagination.
    - NineStarPoint 5y ago
      On companies providing documentation, the big point is that collective entities are not protected by the fifth amendment. You cannot invoke the fifth to protect a group you are a member of from liability, the fifth is a purely individual right. So anything related to companies and the fifth amendment doesn’t transfer over to individuals and the fifth amendment.
    - lugged 5y ago
      Don't a lot of cp cases hinge on being able to compel computer owners to decrypt hard drives?
      - namelessoracle 5y ago
        Yes, but the case law for this is beyond complex and changes by jurisdiction. I think it hinges on if the search for the hard drives is for specific files or exploratory. IOW "we saw traffic that led us to believe he downloaded this specific piece of CP on this date and we want to verify its there" vs "we believe there is CP on his hard drive based on testimony from this person who said he shared CP with that person". But the case law for this is super complex and changes by jurisdiction. But if a judge tells you to unlock the hard drive they will 100 percent throw you in jail until you unlock it. For years even. If what they did was "illegal" then there will be no consequences for the judge.
- ceejayoz 5y ago
  The answer to that is unknown. The most recent case to make its way up to SCOTUS got declined. https://www.scotusblog.com/case-files/cases/andrews-v-new-jersey/ https://www.scotusblog.com/case-files/cases/andrews-v-new-je... There are disagreements at the lower courts on the matter.
Threeve303 5y ago
Nothing stopping them from holding it up to your face to unlock it, though, right?
- ceejayoz 5y ago
  Correct. Five clicks of the sleep/wake button will disable Face ID temporarily. If you're prone to keeping incriminating stuff on the phone, you should probably have it off entirely.
  - angulardragon03 5y ago
    You can also just hold power + a volume button until you get the "power off" dialog, which also disables FaceID until the next time you enter your passcode.
  - r00fus 5y ago
    There's no "if" statement required. Everyone should disable their phone when encountering law enforcement unless they're using it to record (and it's a burner). Who knows how corrupt that particular LE is and what agenda they are following.
    - ceejayoz 5y ago
      Yes. People more likely to encounter law enforcement in surprise, break-down-the-door scenarios where the cops might have a vested interest in keeping you away from the phone should probably forgo Face/Touch ID entirely, though.
- Sohcahtoa82 5y ago
  Which is why I would never enable using my face to unlock my phone. It's probably the only thing I would ever call an insecurity feature.
evgen 5y ago
Claim the EFF, but headline statement is not an assertion that has held up in court.
- WalterGR 5y ago
  Seems to have held up in the Utah court of appeals: “Instead, during trial, the prosecution offered testimony and argument about his refusal. The defense argued that this violated the defendant’s Fifth Amendment right to remain silent, which also prevents the state from commenting on his silence. The court of appeals agreed, and now the state has appealed to the Utah Supreme Court.” In that text, “prevents the state from commenting on his silence” is a link to https://supreme.justia.com/cases/federal/us/380/609/ https://supreme.justia.com/cases/federal/us/380/609/
  - evgen 5y ago
    Fair point. It has held up in a single state court of appeals, so I was definitely wrong about this being without substance on appeal, but the jurisdiction of the ruling is quite small and I am unaware of anything federal backing the claims being made.
    - eynsham 5y ago
      See e.g. p. 10ff. of the amicus brief where quite a lot of federal precedent is cited.
    - joshjdr 5y ago
      I’m not sure this is correct. A state court of appeals made this ruling, but it wasn’t a matter of state law (the “law” is the US constitution and the precedent was a US Supreme Court case); I believe the “jurisdiction” (e.g. where this ruling establishes precedent as far as how the 5th amendment applies in this situation) is the entire US (unless a higher court rules otherwise). Not a lawyer but I think a future defense attorney with a client in a similar situation in a another state would reference this ruling and try to convince a judge that their client’s situation was similar enough to invoke that ruling, whereas a prosecutor would be making the case that it was different enough that it did not apply (vs saying that it was a different jurisdiction and did not apply).
nixpulvis 5y ago
Hmmmm... I was under the impression this was already the case. I remember reading about this a while ago when I was learning that they can force you to provide a fingerprint or face-scan.
- ceejayoz 5y ago
  Not having to reveal the passcode has been the rule for a while. Not being allowed to bring that refusal up as evidence of guilt on Fifth Amendment grounds during the trial is new. (And correct.)
  - alisonkisk 5y ago
    Why? You have a right to carry a licensed gun to a scene where a murder happens, and scream insults at the the (soon to be) victim, but the prosecution is allowd in to mention that at trial.
  - dragonwriter 5y ago
    > Not having to reveal the passcode has been the rule for a while No, its not. It is an issue that is left open in US Supreme Court Fifth Amendment case law, and on which lower courts are split. > Not being allowed to bring that refusal up as evidence of guilt on Fifth Amendment grounds during the trial is new No, it is well-established that you can't raise use of Fifth Amendment self-incrimination rights to suggest guilt, so if not revealing passcodes is protected (which is the point in dispute that EFF is arguing to the Utah Supreme Court, and which the court immediately below agreed with), there is no dispute that refusal can't also be used to suggest guilt.
    - ceejayoz 5y ago
      You can't say the first is left open but the second is not. If "can I be forced to reveal the passcode" is undecided, "can refusing to do so imply guilt" depends on the resolution of the first.
      - 5y ago
opheliate 5y ago
Meanwhile, in the UK: https://www.hcsolicitors.co.uk/news/giving-the-police-your-pin-or-password-to-your-phone https://www.hcsolicitors.co.uk/news/giving-the-police-your-p... If a judge authorises a notice, under RIPA, you can be served a 2 year sentence for failing to disclose your phone's passcode.
- soco 5y ago
  I think the difference is from where the request comes - from the police during interrogation, or from the judge during trial.
  - ceejayoz 5y ago
    The difference is also that the UK doesn't have a Fifth Amendment, and their right to remain silent is subtly but importantly different.
    - deleted 5y ago
      [deleted]
    - teh_klev 5y ago
      Indeed, in England and Wales: "You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." In Scotland it's different: "You are not obliged to say anything but anything you do say will be noted down and may be used in evidence. Do you understand?"[1] [1]: https://en.wikipedia.org/wiki/Right_to_silence#Scotland https://en.wikipedia.org/wiki/Right_to_silence#Scotland
      - zarzavat 5y ago
        The English right is much misunderstood. What it is referring to is a situation where you rely on some evidence that you could have fabricated, the prosecution is entitled to point out that you had the opportunity to fabricate it. For example, you claim you were at your friend's house at the time of the crime, but you didn't mention this to the police at the time of the arrest so that they can go and interview your friend to corroborate your alibi. A jury may take from this that your alibi is not very convincing, because you may have arranged this alibi with your friend between arrest and trial. In neither England nor the US can someone be convicted based on silence alone. Silence isn't evidence. It is simply the lack of evidence.
LinuxBender 5y ago
Sortof off topic question. I've never owned a smart phone but might get one soon assuming I can find a decent one that will run grapheneOS. Is there an app that can be given permission to intercept the unlock code and upon receiving the panic/under duress code, discretely put the phone into a "parental controls" configuration that sandboxes all your data and only presents the storage you want the law enforcement children to see? Some cops use a USB device that pulls all the data from the phone. Is there a way to sandbox that data so they only get the data from approved apps and the forensics USB device does not know any better? i.e. not denied data, but rather can only see what you want it to see. Or should this be a feature request to the alternate phone operating systems developers? Maybe this duress code should also activate a timer. If the all-clear code is not entered in a user-defined period of time, the phone wipes all user data in the background resetting it to a brand new phone. Or maybe wipe the data for specified applications to not appear to destroy evidence? Maybe also send network notifications(s) to specific in case of mission compromise destinations? [Edit] Feature request update. This duress system should also log all the data that was added or planted after the duress code was entered, to log people planting evidence. Upload encrypted manifest,timestamps and checksums to remote site in the event law enforcement tamper with evidence.
- calvinmorrison 5y ago
  I don't know - but 1password absolutely does have this! Useful if you're in a scenario where you don't have the American version of human rights. You can hide stuff for a period of time
  - crispyambulance 5y ago
    They call it "Travel Mode" (https://support.1password.com/travel-mode/ https://support.1password.com/travel-mode/). It's good to know it exists. The sad thing is, however, that even just knowing a name/identity is enough for motivated entities to "pull the thread" and go fishing on the internet for whatever they want.
- colejohnson66 5y ago
  If the police are aware of this “feature”, that’s an easy contempt and destruction of evidence charge among others. I’d recommend just not doing it.
pdimitar 5y ago
Formally the police can't demand a lot of stuff. Informally, they'll put you in a room and tell you that they have the legal right to keep you anywhere from 24 to 72 hours in there and they definitely can make you reconsider during that period -- to put it very mildly. Hint: some cops are really good in the skill of inflicting pain to people without lasting medical trace to prove it afterwards. Until there's true accountability and 100% transparency, these legislations and/or idealistic slogans don't mean much. Technically airport security can't make you unlock your phone in many countries as well but I've known two former colleagues who were "convinced" to do so in the airport's back room; the one where problematic passengers are held for 8-24h. So yeah, thanks for nothing -- namely for stating the ideal theoretical state of things -- but a lot of people out there need actual real-time protection, on the spot. Address that. "Raising awareness" doesn't work on ruthless cops. I guess that's a mind-blowing revelation to many Westerners.
- stevespang 5y ago
  Yes, just examine the concept of "qualified immunity", more B.S. jargon for "we can kill you and get away with it", which is just more evidence we live in a gestapo police state . . . .
- jjk166 5y ago
  You don't get justice in a police station, you get justice in a courtroom. The cops may do all sorts of things to you that they're not supposed to, and there's nothing you can do to stop them. But now you have a good chance of getting the whole case, or at least any evidence they obtain as a result of these actions thrown out the window, and potentially stand to gain from a profitable civil suit. Be compliant, be quiet, be observant, lawyer up.
  - pdimitar 5y ago
    Technically you are right but 99% of us have places to be and things to do. Most will suck it up and never even mention it. I don't like it and nobody likes it, but it's very often the case. :(
  - magicalist 5y ago
jsilence 5y ago
If the government has my fingerprints, would they be allowed to use them to unlock the confiscated phone? Might explain why in Germany s of lately you have your fingerprints taken when getting your personal ID (Personalausweis).
- rob74 5y ago
  I'd be very surprised if evidence obtained this way would be admissible at a trial. But if you want to be safe, use another finger for your Id card than for your phone...
  - mikro2nd 5y ago
    Ah... in South Africa they print all n fingers (however many you have.)
  - pasabagi 5y ago
    It is. Germany has no 'fruit of the poison tree' principle. Police can use whatever no matter how it was obtained.
    - inglor_cz 5y ago
      Are you sure? Because in neighboring Czechia, a court can definitely rule evidence inadmissible if its gathering was legally unsound. For example, call recordings that were obtained without lawful permission can be thrown out and actually currently were in a highly visible case.
      - pasabagi 5y ago
        Well, according to the wikipedia article, it goes to the extent that even if you've got evidence through, say, coercion, while that evidence would be invalid, you could use that information so obtained to collect further valid evidence, or even just get the suspect to repeat the previous statements (not under coercion) then resubmit it. But I've mostly just got this from my wife complaining about it. There's very little structurally in place to prevent the police from abusing their power in germany, and when it comes to evidence collection, they are definitely incentivized to do so.
jsilence 5y ago
If the government has my fingerprints, would they be allowed to use them to unlock the confiscated phone? Might explain why in Germany as of lately you have your fingerprints taken when getting your personal ID (Personalausweis).
- avianlyric 5y ago
  What do American constitutional protections have to do with German ID?
  - jsilence 5y ago
    Also in other jurisdictions people have the right to not incriminate themselves by refusing to answer questions. If I am allowed to refuse giving my pin code for unlocking the phone, it would be interesting whether the police is allowed to use your fingerprint to unlock your phone.
- hutrdvnj 5y ago
  I think it's possible to deny that.
  - jsilence 5y ago
    It was possible to deny it. As of July this year it is mandatory.
crate_barre 5y ago
I would not put it past a cop to hold a phone up to someone’s screen and FaceID unlock it and then say you unlocked it yourself.
- colinmhayes 5y ago
  They're allowed to do that anyway.
- KingMachiavelli 5y ago
  My understanding is that in the US this would be completely legal anyway.
remram 5y ago
There should be a second passcode that erases the phone or locks it for 3 days.
- polyterative 5y ago
  this would really be cool
jollybean 5y ago
"In Valdez, the defendant was charged with kidnapping his ex-girlfriend after arranging a meeting under false pretenses. " 'Valdez' is not going to be arbitrarily charged with kidnapping, he'll have the ex-girlfriend as a primary witness. If I were innocent and accused of kidnapping someone I'd check with my lawyer and then hand over my phone because it would exonerate me. I'm inclined with the ruling, but let's be pragmatic here for a moment and recognize whether or not we're seeking actual just outcomes. I'd imagine they should make getting a court order for such a serious crime very quickly kind of a priority.
- nerdponx 5y ago
  > I'd imagine they should make getting a court order for such a serious crime very quickly kind of a priority. That's the whole point. This was done without a court order, and they used his refusal . There should have been a court order. Also, the rule is not about unlocking phones. It's about what happens if a defendant refuses to unlock a phone: that fact can't be used against the defendant in court. The purpose of this rule is not to protect kidnappers, but to protect other people who might be browbeaten or manipulated into incriminating themselves for crimes they didn't commit.
- WkmYq 5y ago
  > If I were innocent and accused of kidnapping someone I'd check with my lawyer and then hand over my phone because it would exonerate me. I think it's very unlikely that there would be any exculpatory evidence on the phone of someone wrongly accused of kidnapping. It's way more likely that there would be something innocent that can be used as an indication of guilt by the prosecution. I can't imagine any lawyer advising their client to voluntarily give the prosecution that kind of evidence, especially as the client almost certainly doesn't remember everything that's on their phone. Lawyers don't like asking witnesses questions they don't already know the answer to. This is like asking a million such questions with next to no probability of any favorable answer. > I'm inclined with the ruling, but let's be pragmatic here for a moment and recognize whether or not we're seeking actual just outcomes. It sounds like you are assuming that the defendant is guilty. Do you have anything beyond a flawed and (at least for now) overturned trial to support that assumption? > I'd imagine they should make getting a court order for such a serious crime very quickly kind of a priority. It should never be legal to force someone to give up passwords or otherwise aid in their own prosecution.
anonymousiam 5y ago
I'm a long-time EFF supporter, but I am always concerned when they (or any other organization that defends civil rights) chooses to intervene in a loser of a case like this. The defendant will likely be convicted of kidnapping, and hopefully the Supreme Court will not use some form of twisted logic to rationalize what the cops did. The correct ruling here is to force a mistrial and forbid any testimony about refusing to provide passcodes at the retrial.
- nerdponx 5y ago
  Maybe it would be better if they were more explicit about the "what should have happened" part, instead of just saying "no, the police shouldn't have done that and shouldn't be allowed to do that."
- withinboredom 5y ago
  It's about Due Process. It doesn't matter if you are guilty, you still have the same rights as someone who is not guilty.
  - pbhjpbhj 5y ago
    That's not how it works: you're [supposedly] not guilty until conviction and so, like all not guilty people, have the same rights. But, on conviction your rights are severely curtailed if the sentence is custodial. So I guess you could say "It doesn't matter if you are later found guilty [...]" to be consistent with the presumption of innocence.
    - withinboredom 5y ago
      Yeah, I could have been more clear. Thanks!
- RNCTX 5y ago
  [flagged]
  - 5y ago
dahart 5y ago
> this case turns on one of the most fundamental protections in our constitutional system: an accused person’s ability to exercise his Fifth Amendment rights without having his silence used against him. A very interesting tidbit I learned here on HN a couple years back — the Supreme Court ruled in 1992 that you have to declare out loud an intent to invoke your Fifth Amendment rights, if you haven’t been formally arrested yet. Literal “silence” may be acceptable after being Mirandized, but not necessarily before. https://harronlaw.com/blog/miranda-rights-texas/ https://harronlaw.com/blog/miranda-rights-texas/ https://www.oyez.org/cases/2012/12-246 https://www.oyez.org/cases/2012/12-246 “Question: Does the Fifth Amendment's Self-Incrimination Clause protects a defendant's refusal to answer questions asked by law enforcement before he has been arrested or read his Miranda rights?” No, by 5-4 vote.
- titzer 5y ago
  > No, by 5-4 vote. I was curious who voted which way. I was not surprised one bit.
  - syspec 5y ago
    Share?
- ashtonkem 5y ago
  Then there’s the absurd case where a defendant was found to have not invoked his 5th amendment rights by saying “I want a lawyer dawg”. The court, with laughably straight faces, decided that he might have been asking for a dog lawyer. Courts can be shockingly corrupt.
  - jaytaylor 5y ago
    I was skeptical, but a quick web search verified that this 100% happened - recently even, in 2017. https://www.washingtonpost.com/news/true-crime/wp/2017/11/02/the-suspect-told-police-give-me-a-lawyer-dog-the-court-says-he-wasnt-asking-for-a-lawyer/ https://www.washingtonpost.com/news/true-crime/wp/2017/11/02... > The Louisiana Supreme Court ruled that the suspect was, in fact, asking for a “lawyer dog,” .. That's bad, dawg.
rangerdan 5y ago
Classic EFF, having gone completely downhill and capitulated after Snowden, writes another idiotic article about police "noooo ... can't do that!" in spite of overwhelming evidence they can and do. But it's cool because EFF wrote an article saying they can't! They're the good guys!
Ansil849 5y ago
Here's the thing: you can have all sorts of detached, academic discussions on a forum like HN or on a blogpost about what the best thing to do is, or the most pragmatic thing, or the worst thing when dealing with a police encounter. But if you ever find yourself in a situation where a police officer is pointing a gun at you, none of this discussion matters. I've had that happen to me (when an AirBNB owner failed to mention that they have a silent alarm system which calls the police). It is not pleasant, and there are no clever things to do or say. You will do whatever the cop wants, because you do not want to be shot. People don't like hearing this. They like to think of themselves as being smart, as having self-respect and dignity, as being able to 'speak truth to power' or at least stand their ground. That, unfortunately, is not the reality. Should you encounter, at some point in your life, a situation where a police officer is pointing a gun at you, you will do whatever the fuck they are telling you to do. That's the grim reality. It is an utterly dehumanizing, degrading interaction. There are no witty things to say or do. You will do whatever you are told, because a person is pointing a deadly weapon at you and telling you to do them.
- testfoobar 5y ago
  Had a similar situation. Neighbor called cops because he saw a prowler outside his house at 2am. I woke up hearing commotion and went outside to my backyard. Nice young cop was in my yard (no fence between properties) and pointed his drawn gun right at me. My hands went up and I stopped moving. Probably even stopped breathing. It was a terrible situation for everyone. No prowler was caught.
- rootusrootus 5y ago
  > Should you encounter, at some point in your life, a situation where a police officer is pointing a gun at you, you will do whatever the fuck they are telling you to do. That's the grim reality. I'm not sure if that's grim, though; don't most people want it to be exactly that way? We grant the police extraordinary power and some amount of immunity on purpose.
  - Ansil849 5y ago
    This whole 250 comment thread is basically people discussing what they'd do or what you should do when finding yourself in a police encounter. My counterpoint is that none of that discussion actually applies. As for most people wanting it that way, I think it is because most people have not actually encountered it. They want it in the abstract, likely not so much when it happens to them. Kind of the classic...the people who want wars typically don't want their children in those wars.
nikkinana 5y ago
[dead]
kingcharles 5y ago
This happened to me. The police wanted my password and refused my right to silence, wouldn't let me call a lawyer. I wouldn't talk. Then they threatened my wife and I gave up my password to stop them from hurting her. The password was suppressed by the court, but they let the police use it anyway because one of the officers (with no formal computer qualifications) testified he could have broken 2048-bit AES encryption without the password. And worse case he said he would unsolder the chips off the circuit board and put them onto another board and that would fix it. The judge allowed the testimony and believed it. Make sure you always use a password on your devices though. Biometrics are not protected by the 5th Amendment in the USA as the police can legally force your finger onto a touchpad or hold your face in front of a camera.
- BeefySwain 5y ago
  Did you appeal? Or reach out to the ACLU or EFF? I'll admit I'm somewhat skeptical of your account, but if true I would expect a post demonstrating so would be on the front page of this site quite quickly.
  - kingcharles 5y ago
    Where I live you can only appeal once you're found guilty at a trial. The case is over 8 years old now and I still haven't had trial. I would hope the appeal court would reverse, but I've had about a dozen cases wrongly denied by the appellate courts recently. The appellate courts are pretty much as biased as the trial courts, especially at the state level. The federal courts are a little bit smarter. I've tried talking to the ACLU and EFF in the past but received no replies.
    - dillondoyle 5y ago
      Wait, you are part to or accused in about 12 cases?!
      - IceWreck 5y ago
        Now I'm wondering what he does for a living. Maybe he's an activist or something/.
andrewshadura 5y ago
The title should start with "In the US".
SavantIdiot 5y ago
Lots of posts on here about US folks taking bizarre measures to avoid being harassed by authority: travel with burner phones, not using unusual OSes, not using techniques to record, wiping phones before travel. We're just normalizing a slow roll to a police-state.
- SauciestGNU 5y ago
  Not exactly a slow roll, recently a group of my friends engaged in a sit-in, and the police beat them then charged them with resisting or obstructing causing injury, a 5 year felony because despite not resisting the officers complained of soreness after beating them. I just want to say the police are almost universally monsters, and if you find yourself on a jury where someone is accused of violence against the police, consider not convicting, since the police are probably either lying or the accused acted in self-defense.
  - BingoAhoy 5y ago
    Yup I was detained by a police, where he broke my rib, and in car ride over he nonchalantly said consider myself lucky he wasn't pressing charges for me grabbing him. That itself being a remarkably bold lie.
- annoyingnoob 5y ago
  No, we have Qualified Immunity. The cops can do whatever the fuck they want and then lie about it without any repercussions whatsoever. Even in a case where it can be proven that a cop lied on the stand the court will side with the cops and there is no perjury for cops due to qualified immunity. If we can ever hold police to the same standards as every other citizen then we won't need to try to evade police detection. Pretty sad that police are so dishonest on a regular basis. The police in the US are really government sanctioned gangs of thugs. Next time you see a politician get up and talk about being 'tough on crime' you'll know how things got this way.
  - thaumasiotes 5y ago
    > and there is no perjury for cops due to qualified immunity. Qualified immunity prevents private parties from suing the cops. But isn't perjury a crime? Qualified immunity doesn't apply to criminal prosecutions.
hungryforcodes 5y ago
Sorry-- this is totally unrelated and maybe even inappropriate-- but how do people sort through 300+ comments on HN to consume a topic? I understand that /. introduces bias with its system, but I honestly find myself abandoning alot of deeper HN threads because it's so difficult to parse all the comments. Perhaps I'm missing something.
- sixstringtheory 5y ago
  If by “consume” you mean “acquire the contents” of all those comments, well, you’ll have to read them all. A more interesting question to me for a while has been, how to follow the evolution of a deep thread in which the time it takes to read a larger amount of comments, even more are made. How to know where all the new ones are? It’d be cool to be able to diff a thread based on timestamp.
  - IPTN 5y ago
    https://github.com/insin/hn-comments-owl https://github.com/insin/hn-comments-owl does exactly that. Makes following threads so much better.
    - hungryforcodes 5y ago
      You and the parent post have both interesting answers -- thanks :)
greenail 5y ago
The foregone conclusion doctrine also is something folks should know about. "while the content was itself not protected, the act of production could be testimonial irrespective of the content. The court reasoned, “[t]he act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer.” The court thus recognized that, in some instances, the Fifth Amendment protects the act of production. Despite the act of production principle, the court in Fisher reasoned that “[t]he existence and location of the papers are a foregone conclusion, and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he, in fact, has the papers. Under these circumstances ... ‘no constitutional rights are touched. The question is not of testimony, but of surrender.’” This is referred to as the “foregone conclusion” exception to the “act of production” doctrine. In short, the Fifth Amendment is not implicated if the government knows of the existence, possession and authenticity of incriminating evidence, because the production thereof contains no testimonial import. Both the act of production and foregone conclusion doctrines are important to our understanding of how the Fifth Amendment protects against the compelled production of our passwords" https://www.lawfareblog.com/fifth-amendment-decryption-and-biometric-passcodes https://www.lawfareblog.com/fifth-amendment-decryption-and-b...
joecool1029 5y ago
Change the damn topic please, this is just for Utah at the moment. It may be that after the state decides this will go to SCOTUS but I really don't know if Utah works different than my home state, New Jersey (which has to send cases like this off for consideration to SCOTUS). Even if it makes it there, they'll probably decline to review it, because they suck. In New Jersey you can absolutely be compelled to reveal your passcode: https://www.eff.org/cases/andrews-v-new-jersey https://www.eff.org/cases/andrews-v-new-jersey. Again, as with many of our (non-1A) bill of rights cases, SCOTUS declined to hear the case: https://www.scotusblog.com/case-files/cases/andrews-v-new-jersey/ https://www.scotusblog.com/case-files/cases/andrews-v-new-je...

592 points by oedmarap 5y ago

socrates1998 5y ago

Don't talk to the police. It really isn't in your interests at all. They are there to arrest people, not be your friend. https://www.youtube.com/watch?v=d-7o9xYp7eE https://www.youtube.com/watch?v=d-7o9xYp7eE

emilfihlman 5y ago

But wait, does this say that another court order can compel you to unlock it anyways? That doesn't seem logical at all.

lelanthran 5y ago
> But wait, does this say that another court order can compel you to unlock it anyways? If a court can compel speech, then they may as well go ahead and compel the suspect to confess. There's no difference, once the courts compel speech.
- warkdarrior 5y ago
  It does not make sense to compel someone to confess, because that presumes the person is guilty. But it may make sense to compel someone to share factual information ("the PIN is 1234") or to provide access to information.
  - lelanthran 5y ago
    > But it may make sense to compel someone to share factual information ("the PIN is 1234") or to provide access to information. No, it does not, because "compel" means that if they do not comply you punish them until they do. How are you to know whether or not they actually remember the information you are asking ("The PIN was, err .. 1235?"). This leads to effectively punishing them for not giving the "correct" answer, which is no different from punishing them for not confessing. Once you go down the path of punishing people for not divulging the contents of their mind, you may well just punish them for the crime itself and not bother with a trial. If you allow compelled speech, there is no reason to have a trial.
postingawayonhn 5y ago
Right to remain silent vs. a court order to provide access to evidence.
- Cthulhu_ 5y ago
  Yeah but that access has to come from your brain; doesn't it therefore fall under the 5th amendment that you have the right to remain silent and something something self-incrimination? I mean I'm trying to think of other instances of getting access to evidence, and the only things I can think of is companies having to provide certain administrative documentation that may not even be their own. But that's probably me lacking imagination.
  - NineStarPoint 5y ago
    On companies providing documentation, the big point is that collective entities are not protected by the fifth amendment. You cannot invoke the fifth to protect a group you are a member of from liability, the fifth is a purely individual right. So anything related to companies and the fifth amendment doesn’t transfer over to individuals and the fifth amendment.
  - lugged 5y ago
    Don't a lot of cp cases hinge on being able to compel computer owners to decrypt hard drives?
    - namelessoracle 5y ago
      Yes, but the case law for this is beyond complex and changes by jurisdiction. I think it hinges on if the search for the hard drives is for specific files or exploratory. IOW "we saw traffic that led us to believe he downloaded this specific piece of CP on this date and we want to verify its there" vs "we believe there is CP on his hard drive based on testimony from this person who said he shared CP with that person". But the case law for this is super complex and changes by jurisdiction. But if a judge tells you to unlock the hard drive they will 100 percent throw you in jail until you unlock it. For years even. If what they did was "illegal" then there will be no consequences for the judge.
ceejayoz 5y ago
The answer to that is unknown. The most recent case to make its way up to SCOTUS got declined. https://www.scotusblog.com/case-files/cases/andrews-v-new-jersey/ https://www.scotusblog.com/case-files/cases/andrews-v-new-je... There are disagreements at the lower courts on the matter.

Threeve303 5y ago

Nothing stopping them from holding it up to your face to unlock it, though, right?

ceejayoz 5y ago
Correct. Five clicks of the sleep/wake button will disable Face ID temporarily. If you're prone to keeping incriminating stuff on the phone, you should probably have it off entirely.
- angulardragon03 5y ago
  You can also just hold power + a volume button until you get the "power off" dialog, which also disables FaceID until the next time you enter your passcode.
- r00fus 5y ago
  There's no "if" statement required. Everyone should disable their phone when encountering law enforcement unless they're using it to record (and it's a burner). Who knows how corrupt that particular LE is and what agenda they are following.
  - ceejayoz 5y ago
    Yes. People more likely to encounter law enforcement in surprise, break-down-the-door scenarios where the cops might have a vested interest in keeping you away from the phone should probably forgo Face/Touch ID entirely, though.
Sohcahtoa82 5y ago
Which is why I would never enable using my face to unlock my phone. It's probably the only thing I would ever call an insecurity feature.

evgen 5y ago

Claim the EFF, but headline statement is not an assertion that has held up in court.

WalterGR 5y ago
Seems to have held up in the Utah court of appeals: “Instead, during trial, the prosecution offered testimony and argument about his refusal. The defense argued that this violated the defendant’s Fifth Amendment right to remain silent, which also prevents the state from commenting on his silence. The court of appeals agreed, and now the state has appealed to the Utah Supreme Court.” In that text, “prevents the state from commenting on his silence” is a link to https://supreme.justia.com/cases/federal/us/380/609/ https://supreme.justia.com/cases/federal/us/380/609/
- evgen 5y ago
  Fair point. It has held up in a single state court of appeals, so I was definitely wrong about this being without substance on appeal, but the jurisdiction of the ruling is quite small and I am unaware of anything federal backing the claims being made.
  - eynsham 5y ago
    See e.g. p. 10ff. of the amicus brief where quite a lot of federal precedent is cited.
  - joshjdr 5y ago
    I’m not sure this is correct. A state court of appeals made this ruling, but it wasn’t a matter of state law (the “law” is the US constitution and the precedent was a US Supreme Court case); I believe the “jurisdiction” (e.g. where this ruling establishes precedent as far as how the 5th amendment applies in this situation) is the entire US (unless a higher court rules otherwise). Not a lawyer but I think a future defense attorney with a client in a similar situation in a another state would reference this ruling and try to convince a judge that their client’s situation was similar enough to invoke that ruling, whereas a prosecutor would be making the case that it was different enough that it did not apply (vs saying that it was a different jurisdiction and did not apply).

nixpulvis 5y ago

Hmmmm... I was under the impression this was already the case. I remember reading about this a while ago when I was learning that they can force you to provide a fingerprint or face-scan.

ceejayoz 5y ago
Not having to reveal the passcode has been the rule for a while. Not being allowed to bring that refusal up as evidence of guilt on Fifth Amendment grounds during the trial is new. (And correct.)
- alisonkisk 5y ago
  Why? You have a right to carry a licensed gun to a scene where a murder happens, and scream insults at the the (soon to be) victim, but the prosecution is allowd in to mention that at trial.
- dragonwriter 5y ago
  > Not having to reveal the passcode has been the rule for a while No, its not. It is an issue that is left open in US Supreme Court Fifth Amendment case law, and on which lower courts are split. > Not being allowed to bring that refusal up as evidence of guilt on Fifth Amendment grounds during the trial is new No, it is well-established that you can't raise use of Fifth Amendment self-incrimination rights to suggest guilt, so if not revealing passcodes is protected (which is the point in dispute that EFF is arguing to the Utah Supreme Court, and which the court immediately below agreed with), there is no dispute that refusal can't also be used to suggest guilt.
  - ceejayoz 5y ago
    You can't say the first is left open but the second is not. If "can I be forced to reveal the passcode" is undecided, "can refusing to do so imply guilt" depends on the resolution of the first.
    - 5y ago

opheliate 5y ago

Meanwhile, in the UK: https://www.hcsolicitors.co.uk/news/giving-the-police-your-pin-or-password-to-your-phone https://www.hcsolicitors.co.uk/news/giving-the-police-your-p... If a judge authorises a notice, under RIPA, you can be served a 2 year sentence for failing to disclose your phone's passcode.

soco 5y ago
I think the difference is from where the request comes - from the police during interrogation, or from the judge during trial.
- ceejayoz 5y ago
  The difference is also that the UK doesn't have a Fifth Amendment, and their right to remain silent is subtly but importantly different.
  - deleted 5y ago
    [deleted]
  - teh_klev 5y ago
    Indeed, in England and Wales: "You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." In Scotland it's different: "You are not obliged to say anything but anything you do say will be noted down and may be used in evidence. Do you understand?"[1] [1]: https://en.wikipedia.org/wiki/Right_to_silence#Scotland https://en.wikipedia.org/wiki/Right_to_silence#Scotland
    - zarzavat 5y ago
      The English right is much misunderstood. What it is referring to is a situation where you rely on some evidence that you could have fabricated, the prosecution is entitled to point out that you had the opportunity to fabricate it. For example, you claim you were at your friend's house at the time of the crime, but you didn't mention this to the police at the time of the arrest so that they can go and interview your friend to corroborate your alibi. A jury may take from this that your alibi is not very convincing, because you may have arranged this alibi with your friend between arrest and trial. In neither England nor the US can someone be convicted based on silence alone. Silence isn't evidence. It is simply the lack of evidence.

LinuxBender 5y ago

Sortof off topic question. I've never owned a smart phone but might get one soon assuming I can find a decent one that will run grapheneOS. Is there an app that can be given permission to intercept the unlock code and upon receiving the panic/under duress code, discretely put the phone into a "parental controls" configuration that sandboxes all your data and only presents the storage you want the law enforcement children to see? Some cops use a USB device that pulls all the data from the phone. Is there a way to sandbox that data so they only get the data from approved apps and the forensics USB device does not know any better? i.e. not denied data, but rather can only see what you want it to see. Or should this be a feature request to the alternate phone operating systems developers? Maybe this duress code should also activate a timer. If the all-clear code is not entered in a user-defined period of time, the phone wipes all user data in the background resetting it to a brand new phone. Or maybe wipe the data for specified applications to not appear to destroy evidence? Maybe also send network notifications(s) to specific in case of mission compromise destinations? [Edit] Feature request update. This duress system should also log all the data that was added or planted after the duress code was entered, to log people planting evidence. Upload encrypted manifest,timestamps and checksums to remote site in the event law enforcement tamper with evidence.

calvinmorrison 5y ago
I don't know - but 1password absolutely does have this! Useful if you're in a scenario where you don't have the American version of human rights. You can hide stuff for a period of time
- crispyambulance 5y ago
  They call it "Travel Mode" (https://support.1password.com/travel-mode/ https://support.1password.com/travel-mode/). It's good to know it exists. The sad thing is, however, that even just knowing a name/identity is enough for motivated entities to "pull the thread" and go fishing on the internet for whatever they want.
colejohnson66 5y ago
If the police are aware of this “feature”, that’s an easy contempt and destruction of evidence charge among others. I’d recommend just not doing it.

pdimitar 5y ago

Formally the police can't demand a lot of stuff. Informally, they'll put you in a room and tell you that they have the legal right to keep you anywhere from 24 to 72 hours in there and they definitely can make you reconsider during that period -- to put it very mildly. Hint: some cops are really good in the skill of inflicting pain to people without lasting medical trace to prove it afterwards. Until there's true accountability and 100% transparency, these legislations and/or idealistic slogans don't mean much. Technically airport security can't make you unlock your phone in many countries as well but I've known two former colleagues who were "convinced" to do so in the airport's back room; the one where problematic passengers are held for 8-24h. So yeah, thanks for nothing -- namely for stating the ideal theoretical state of things -- but a lot of people out there need actual real-time protection, on the spot. Address that. "Raising awareness" doesn't work on ruthless cops. I guess that's a mind-blowing revelation to many Westerners.

stevespang 5y ago
Yes, just examine the concept of "qualified immunity", more B.S. jargon for "we can kill you and get away with it", which is just more evidence we live in a gestapo police state . . . .
jjk166 5y ago
You don't get justice in a police station, you get justice in a courtroom. The cops may do all sorts of things to you that they're not supposed to, and there's nothing you can do to stop them. But now you have a good chance of getting the whole case, or at least any evidence they obtain as a result of these actions thrown out the window, and potentially stand to gain from a profitable civil suit. Be compliant, be quiet, be observant, lawyer up.
- pdimitar 5y ago
  Technically you are right but 99% of us have places to be and things to do. Most will suck it up and never even mention it. I don't like it and nobody likes it, but it's very often the case. :(
- magicalist 5y ago

jsilence 5y ago

If the government has my fingerprints, would they be allowed to use them to unlock the confiscated phone? Might explain why in Germany s of lately you have your fingerprints taken when getting your personal ID (Personalausweis).

rob74 5y ago
I'd be very surprised if evidence obtained this way would be admissible at a trial. But if you want to be safe, use another finger for your Id card than for your phone...
- mikro2nd 5y ago
  Ah... in South Africa they print all n fingers (however many you have.)
- pasabagi 5y ago
  It is. Germany has no 'fruit of the poison tree' principle. Police can use whatever no matter how it was obtained.
  - inglor_cz 5y ago
    Are you sure? Because in neighboring Czechia, a court can definitely rule evidence inadmissible if its gathering was legally unsound. For example, call recordings that were obtained without lawful permission can be thrown out and actually currently were in a highly visible case.
    - pasabagi 5y ago
      Well, according to the wikipedia article, it goes to the extent that even if you've got evidence through, say, coercion, while that evidence would be invalid, you could use that information so obtained to collect further valid evidence, or even just get the suspect to repeat the previous statements (not under coercion) then resubmit it. But I've mostly just got this from my wife complaining about it. There's very little structurally in place to prevent the police from abusing their power in germany, and when it comes to evidence collection, they are definitely incentivized to do so.

jsilence 5y ago

If the government has my fingerprints, would they be allowed to use them to unlock the confiscated phone? Might explain why in Germany as of lately you have your fingerprints taken when getting your personal ID (Personalausweis).

avianlyric 5y ago
What do American constitutional protections have to do with German ID?
- jsilence 5y ago
  Also in other jurisdictions people have the right to not incriminate themselves by refusing to answer questions. If I am allowed to refuse giving my pin code for unlocking the phone, it would be interesting whether the police is allowed to use your fingerprint to unlock your phone.
hutrdvnj 5y ago
I think it's possible to deny that.
- jsilence 5y ago
  It was possible to deny it. As of July this year it is mandatory.

crate_barre 5y ago

I would not put it past a cop to hold a phone up to someone’s screen and FaceID unlock it and then say you unlocked it yourself.

colinmhayes 5y ago
They're allowed to do that anyway.
KingMachiavelli 5y ago
My understanding is that in the US this would be completely legal anyway.

remram 5y ago

There should be a second passcode that erases the phone or locks it for 3 days.

polyterative 5y ago
this would really be cool

jollybean 5y ago

"In Valdez, the defendant was charged with kidnapping his ex-girlfriend after arranging a meeting under false pretenses. " 'Valdez' is not going to be arbitrarily charged with kidnapping, he'll have the ex-girlfriend as a primary witness. If I were innocent and accused of kidnapping someone I'd check with my lawyer and then hand over my phone because it would exonerate me. I'm inclined with the ruling, but let's be pragmatic here for a moment and recognize whether or not we're seeking actual just outcomes. I'd imagine they should make getting a court order for such a serious crime very quickly kind of a priority.

nerdponx 5y ago
> I'd imagine they should make getting a court order for such a serious crime very quickly kind of a priority. That's the whole point. This was done without a court order, and they used his refusal . There should have been a court order. Also, the rule is not about unlocking phones. It's about what happens if a defendant refuses to unlock a phone: that fact can't be used against the defendant in court. The purpose of this rule is not to protect kidnappers, but to protect other people who might be browbeaten or manipulated into incriminating themselves for crimes they didn't commit.
WkmYq 5y ago
> If I were innocent and accused of kidnapping someone I'd check with my lawyer and then hand over my phone because it would exonerate me. I think it's very unlikely that there would be any exculpatory evidence on the phone of someone wrongly accused of kidnapping. It's way more likely that there would be something innocent that can be used as an indication of guilt by the prosecution. I can't imagine any lawyer advising their client to voluntarily give the prosecution that kind of evidence, especially as the client almost certainly doesn't remember everything that's on their phone. Lawyers don't like asking witnesses questions they don't already know the answer to. This is like asking a million such questions with next to no probability of any favorable answer. > I'm inclined with the ruling, but let's be pragmatic here for a moment and recognize whether or not we're seeking actual just outcomes. It sounds like you are assuming that the defendant is guilty. Do you have anything beyond a flawed and (at least for now) overturned trial to support that assumption? > I'd imagine they should make getting a court order for such a serious crime very quickly kind of a priority. It should never be legal to force someone to give up passwords or otherwise aid in their own prosecution.

anonymousiam 5y ago

I'm a long-time EFF supporter, but I am always concerned when they (or any other organization that defends civil rights) chooses to intervene in a loser of a case like this. The defendant will likely be convicted of kidnapping, and hopefully the Supreme Court will not use some form of twisted logic to rationalize what the cops did. The correct ruling here is to force a mistrial and forbid any testimony about refusing to provide passcodes at the retrial.

nerdponx 5y ago
Maybe it would be better if they were more explicit about the "what should have happened" part, instead of just saying "no, the police shouldn't have done that and shouldn't be allowed to do that."
withinboredom 5y ago
It's about Due Process. It doesn't matter if you are guilty, you still have the same rights as someone who is not guilty.
- pbhjpbhj 5y ago
  That's not how it works: you're [supposedly] not guilty until conviction and so, like all not guilty people, have the same rights. But, on conviction your rights are severely curtailed if the sentence is custodial. So I guess you could say "It doesn't matter if you are later found guilty [...]" to be consistent with the presumption of innocence.
  - withinboredom 5y ago
    Yeah, I could have been more clear. Thanks!
RNCTX 5y ago
[flagged]
- 5y ago

dahart 5y ago

> this case turns on one of the most fundamental protections in our constitutional system: an accused person’s ability to exercise his Fifth Amendment rights without having his silence used against him. A very interesting tidbit I learned here on HN a couple years back — the Supreme Court ruled in 1992 that you have to declare out loud an intent to invoke your Fifth Amendment rights, if you haven’t been formally arrested yet. Literal “silence” may be acceptable after being Mirandized, but not necessarily before. https://harronlaw.com/blog/miranda-rights-texas/ https://harronlaw.com/blog/miranda-rights-texas/ https://www.oyez.org/cases/2012/12-246 https://www.oyez.org/cases/2012/12-246 “Question: Does the Fifth Amendment's Self-Incrimination Clause protects a defendant's refusal to answer questions asked by law enforcement before he has been arrested or read his Miranda rights?” No, by 5-4 vote.

titzer 5y ago
> No, by 5-4 vote. I was curious who voted which way. I was not surprised one bit.
- syspec 5y ago
  Share?
ashtonkem 5y ago
Then there’s the absurd case where a defendant was found to have not invoked his 5th amendment rights by saying “I want a lawyer dawg”. The court, with laughably straight faces, decided that he might have been asking for a dog lawyer. Courts can be shockingly corrupt.
- jaytaylor 5y ago
  I was skeptical, but a quick web search verified that this 100% happened - recently even, in 2017. https://www.washingtonpost.com/news/true-crime/wp/2017/11/02/the-suspect-told-police-give-me-a-lawyer-dog-the-court-says-he-wasnt-asking-for-a-lawyer/ https://www.washingtonpost.com/news/true-crime/wp/2017/11/02... > The Louisiana Supreme Court ruled that the suspect was, in fact, asking for a “lawyer dog,” .. That's bad, dawg.

rangerdan 5y ago

Classic EFF, having gone completely downhill and capitulated after Snowden, writes another idiotic article about police "noooo ... can't do that!" in spite of overwhelming evidence they can and do. But it's cool because EFF wrote an article saying they can't! They're the good guys!

Ansil849 5y ago

Here's the thing: you can have all sorts of detached, academic discussions on a forum like HN or on a blogpost about what the best thing to do is, or the most pragmatic thing, or the worst thing when dealing with a police encounter. But if you ever find yourself in a situation where a police officer is pointing a gun at you, none of this discussion matters. I've had that happen to me (when an AirBNB owner failed to mention that they have a silent alarm system which calls the police). It is not pleasant, and there are no clever things to do or say. You will do whatever the cop wants, because you do not want to be shot. People don't like hearing this. They like to think of themselves as being smart, as having self-respect and dignity, as being able to 'speak truth to power' or at least stand their ground. That, unfortunately, is not the reality. Should you encounter, at some point in your life, a situation where a police officer is pointing a gun at you, you will do whatever the fuck they are telling you to do. That's the grim reality. It is an utterly dehumanizing, degrading interaction. There are no witty things to say or do. You will do whatever you are told, because a person is pointing a deadly weapon at you and telling you to do them.

testfoobar 5y ago
Had a similar situation. Neighbor called cops because he saw a prowler outside his house at 2am. I woke up hearing commotion and went outside to my backyard. Nice young cop was in my yard (no fence between properties) and pointed his drawn gun right at me. My hands went up and I stopped moving. Probably even stopped breathing. It was a terrible situation for everyone. No prowler was caught.
rootusrootus 5y ago
> Should you encounter, at some point in your life, a situation where a police officer is pointing a gun at you, you will do whatever the fuck they are telling you to do. That's the grim reality. I'm not sure if that's grim, though; don't most people want it to be exactly that way? We grant the police extraordinary power and some amount of immunity on purpose.
- Ansil849 5y ago
  This whole 250 comment thread is basically people discussing what they'd do or what you should do when finding yourself in a police encounter. My counterpoint is that none of that discussion actually applies. As for most people wanting it that way, I think it is because most people have not actually encountered it. They want it in the abstract, likely not so much when it happens to them. Kind of the classic...the people who want wars typically don't want their children in those wars.

nikkinana 5y ago

[dead]

kingcharles 5y ago

This happened to me. The police wanted my password and refused my right to silence, wouldn't let me call a lawyer. I wouldn't talk. Then they threatened my wife and I gave up my password to stop them from hurting her. The password was suppressed by the court, but they let the police use it anyway because one of the officers (with no formal computer qualifications) testified he could have broken 2048-bit AES encryption without the password. And worse case he said he would unsolder the chips off the circuit board and put them onto another board and that would fix it. The judge allowed the testimony and believed it. Make sure you always use a password on your devices though. Biometrics are not protected by the 5th Amendment in the USA as the police can legally force your finger onto a touchpad or hold your face in front of a camera.

BeefySwain 5y ago
Did you appeal? Or reach out to the ACLU or EFF? I'll admit I'm somewhat skeptical of your account, but if true I would expect a post demonstrating so would be on the front page of this site quite quickly.
- kingcharles 5y ago
  Where I live you can only appeal once you're found guilty at a trial. The case is over 8 years old now and I still haven't had trial. I would hope the appeal court would reverse, but I've had about a dozen cases wrongly denied by the appellate courts recently. The appellate courts are pretty much as biased as the trial courts, especially at the state level. The federal courts are a little bit smarter. I've tried talking to the ACLU and EFF in the past but received no replies.
  - dillondoyle 5y ago
    Wait, you are part to or accused in about 12 cases?!
    - IceWreck 5y ago
      Now I'm wondering what he does for a living. Maybe he's an activist or something/.

andrewshadura 5y ago

The title should start with "In the US".

SavantIdiot 5y ago

Lots of posts on here about US folks taking bizarre measures to avoid being harassed by authority: travel with burner phones, not using unusual OSes, not using techniques to record, wiping phones before travel. We're just normalizing a slow roll to a police-state.

SauciestGNU 5y ago
Not exactly a slow roll, recently a group of my friends engaged in a sit-in, and the police beat them then charged them with resisting or obstructing causing injury, a 5 year felony because despite not resisting the officers complained of soreness after beating them. I just want to say the police are almost universally monsters, and if you find yourself on a jury where someone is accused of violence against the police, consider not convicting, since the police are probably either lying or the accused acted in self-defense.
- BingoAhoy 5y ago
  Yup I was detained by a police, where he broke my rib, and in car ride over he nonchalantly said consider myself lucky he wasn't pressing charges for me grabbing him. That itself being a remarkably bold lie.
annoyingnoob 5y ago
No, we have Qualified Immunity. The cops can do whatever the fuck they want and then lie about it without any repercussions whatsoever. Even in a case where it can be proven that a cop lied on the stand the court will side with the cops and there is no perjury for cops due to qualified immunity. If we can ever hold police to the same standards as every other citizen then we won't need to try to evade police detection. Pretty sad that police are so dishonest on a regular basis. The police in the US are really government sanctioned gangs of thugs. Next time you see a politician get up and talk about being 'tough on crime' you'll know how things got this way.
- thaumasiotes 5y ago
  > and there is no perjury for cops due to qualified immunity. Qualified immunity prevents private parties from suing the cops. But isn't perjury a crime? Qualified immunity doesn't apply to criminal prosecutions.

hungryforcodes 5y ago

Sorry-- this is totally unrelated and maybe even inappropriate-- but how do people sort through 300+ comments on HN to consume a topic? I understand that /. introduces bias with its system, but I honestly find myself abandoning alot of deeper HN threads because it's so difficult to parse all the comments. Perhaps I'm missing something.

sixstringtheory 5y ago
If by “consume” you mean “acquire the contents” of all those comments, well, you’ll have to read them all. A more interesting question to me for a while has been, how to follow the evolution of a deep thread in which the time it takes to read a larger amount of comments, even more are made. How to know where all the new ones are? It’d be cool to be able to diff a thread based on timestamp.
- IPTN 5y ago
  https://github.com/insin/hn-comments-owl https://github.com/insin/hn-comments-owl does exactly that. Makes following threads so much better.
  - hungryforcodes 5y ago
    You and the parent post have both interesting answers -- thanks :)

greenail 5y ago

The foregone conclusion doctrine also is something folks should know about. "while the content was itself not protected, the act of production could be testimonial irrespective of the content. The court reasoned, “[t]he act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer.” The court thus recognized that, in some instances, the Fifth Amendment protects the act of production. Despite the act of production principle, the court in Fisher reasoned that “[t]he existence and location of the papers are a foregone conclusion, and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he, in fact, has the papers. Under these circumstances ... ‘no constitutional rights are touched. The question is not of testimony, but of surrender.’” This is referred to as the “foregone conclusion” exception to the “act of production” doctrine. In short, the Fifth Amendment is not implicated if the government knows of the existence, possession and authenticity of incriminating evidence, because the production thereof contains no testimonial import. Both the act of production and foregone conclusion doctrines are important to our understanding of how the Fifth Amendment protects against the compelled production of our passwords" https://www.lawfareblog.com/fifth-amendment-decryption-and-biometric-passcodes https://www.lawfareblog.com/fifth-amendment-decryption-and-b...

joecool1029 5y ago

Change the damn topic please, this is just for Utah at the moment. It may be that after the state decides this will go to SCOTUS but I really don't know if Utah works different than my home state, New Jersey (which has to send cases like this off for consideration to SCOTUS). Even if it makes it there, they'll probably decline to review it, because they suck. In New Jersey you can absolutely be compelled to reveal your passcode: https://www.eff.org/cases/andrews-v-new-jersey https://www.eff.org/cases/andrews-v-new-jersey. Again, as with many of our (non-1A) bill of rights cases, SCOTUS declined to hear the case: https://www.scotusblog.com/case-files/cases/andrews-v-new-jersey/ https://www.scotusblog.com/case-files/cases/andrews-v-new-je...