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I can't even understand why this was even still up for debate - 5th amendment allows you to not incriminate yourself - being forced to give up your passcode is

• genocidicbunny 3y ago
  From my reading about this case, is this not down partially to the specific language the court was looking at? That is, the warrants were compelling someone to produce the password, which is a form of testimony, but that a lot of times the warrant instead compels the device to be unlocked, which does not require testimony?
• ethanbond 3y ago
  I mean... police can force you to open your door, your safe, or virtually any other container of secrets. The 5th Amendment doesn't give you broad protection to hide things from police when they have a warrant. A phone is unique thing not because it contains so many secrets, but because you have to give testimony (as opposed to property, like a key) in order to open it, and it's impossible to open by bashing the door down or cutting it open. It's a technological coincidence, not a legal/philosophical doctrine, that makes phones secure against compulsion by law enforcement.
  • anonymousab 3y ago
    > police can force you to open your door, your safe, or virtually any other container of secrets. Is it different from compelling someone to enter a text password to unlock a vault? What if it's self-destructive otherwise? What happens if the password itself - or act of unlocking - is something self-incriminating (in form, in contents, or otherwise)?
    • ssl232 3y ago
      > What happens if the password itself - or act of unlocking - is something self-incriminating (in form, in contents, or otherwise)? Reminds me of Ian Watkins: https://www.huffingtonpost.co.uk/2013/11/26/lostprophets-singer-ian-w-0_n_4344523.html https://www.huffingtonpost.co.uk/2013/11/26/lostprophets-sin....
    • snickerbockers 3y ago
      You might be able to argue that decrypting the phone's filesystem is forcing you to provide them with information which is not relevant to the case at hand but still incriminating in other ways, since a phone could reasonably be expected to hold vast amounts of unrelated days.
  • dghlsakjg 3y ago
    Subtle distinction: I don't think the police, even with a warrant, can force you to open anything. They can use force to open something if you refuse (or seemingly, if they feel like it), but they can't make you do it. A court on the other hand, can compel you to open something.
    • reactordev 3y ago
      A court can compel you to open something within the warrant as well. In which case they can force you to open anything.
      • dghlsakjg 3y ago
        Yes, but that is a court order issued by the court not the police. An order to unlock something coming from the cops is entirely different, even if they have a warrant. Warrants would allow them to seize a phone, but you don’t have to provide the password.
    • tantalor 3y ago
      A court can compel you to do pretty much anything, within the law.
    • zlg_codes 3y ago
      The only thing we must do in this world is die. Everything else is up for debate.
  • tantalor 3y ago
    > police can force you to open your door, your safe, or virtually any other container of secrets No, they can't
    • ethanbond 3y ago
      Gotta love the insane legal opinions people come to on this site.
      • u32480932048 3y ago
        You should see the ones written by actual lawyers!
  • Manuel_D 3y ago
    > I mean... police can force you to open your door, your safe Actually, the government cannot compel you to give the combination to a safe [1]. If it's locked with a key, not a keypad or combination lock, they can force you to give the key. The distinction is that the former is a product of the mind, while the latter is a physical object. Furthermore, what if you forgot the combination? There's no real way to tell if someone has forgotten the combination or is deliberately withholding it. https://supreme.justia.com/cases/federal/us/530/27/ https://supreme.justia.com/cases/federal/us/530/27/
    • ethanbond 3y ago
      Correct. The “have combination in head” is directly analogous to encryption key. But they are allowed to open the safe by other means.
    • kwhitefoot 3y ago
      In the UK forgetting a password is not a defence.
      • Manuel_D 3y ago
        TFA, and my above comment pertain to the US. The UK's laws to compel people to give up passwords seems to make it a de facto crime to forget one's password. Worse yet, it seems like it's illegal to possess random bytes on your devices. I wonder if the UK would change course if people started emailing random bytes to politicians and other supporters of this law, while giving tips to law enforcement that these individuals are coordinating criminal acts over encrypted communications.
      • lelanthran 3y ago
        I know. But ... If you're going to compell someone to give up the contents of their mind under threat of being found guilty if their mind isn't working properly, you may as well just do away with trial. IOW, if you're going to compell speech, just compell the suspect to confess; it's the same thing.
    • tshaddox 3y ago
  • alkonaut 3y ago
    If the government hadn't always have the possibility and right to break into a safe you wouldn't give up the combination to, then that would have been a debate for decades. The reason this is a debate is because they can't crack it.
  • JoshTriplett 3y ago
    > I mean... police can force you to open your door, your safe, or virtually any other container of secrets. No, they can't. They can force you to let them try to open it, but they can't force you to open it for them. If you have some mechanism like "if you try to open this incorrectly it destroys the contents", and you intentionally don't disclose that with the expectation that they're going to try and fail and destroy the contents, you might get charged with destruction of evidence. (EDIT: Replies suggest that disclosure may not suffice.)
    • pc86 3y ago
      For what it's worth you'll still be charged with destruction and/or obstruction even if you warn them.
      • JoshTriplett 3y ago
        Interesting, and surprising. Is there case history and purported rationale on that?
        • ska 3y ago
          Why is that surprising? The 5th isn't some sort of blanket gotcha, it's just there to curtail abuse.
          • JoshTriplett 3y ago
            There's a huge difference between "get out of the way" and "compelled to help".
            • ska 3y ago
              Right, but that doesn't cover "and I booby trapped it". Why wouldn't you be open to charges in that case? Obstruction, destruction of evidence, contempt of court - such mechanisms exist in part to cover such cases.
  • chasil 3y ago
    If you save incriminating documents into an encrypted .ZIP file, the state cannot compel you to provide the password, because the password is in your mind. The contents of the mind cannot be demanded to incriminate self. The state can install a keylogger if they have a warrant, and the results of the keylogger can be admitted as evidence.
    • ethanbond 3y ago
      Again, a coincidence of the technology. It’s “you can’t be forced to open it because it requires you saying the password,” not “you can’t be forced to open it because it contains important secrets.” Right, if they can figure out a way to reveal your secrets without forcing you to say something, they’re allowed to do that (with warrant of course).
• pdabbadabba 3y ago
  A big part of the reason is that the 5th Amendment actually says something substantially narrower than your paraphrase. It actually says that no person "shall be compelled in any criminal case to be a witness against himself." So there's a common argument that the 5th amendment only protects you against being forced to give evidentiary testimony against yourself. Giving up a passcode is arguably different, since the passcode is not (necessarily) evidence in itself, in the sense that it might not be introduced as evidence at trial to establish guilt or innocence. Rather, it is information that will allow law enforcement to access other non-testimonial evidence. I'm not arguing for this position, just providing a perspective on why this isn't as open-and-shut as people often think it should be.
  • Tyr42 3y ago
    So if you password was "I killed them" maybe they won't be able to force you to say it...? Galaxy brain moment.
  • bee_rider 3y ago
    Has anyone tried some really convoluted scheme? Something like: I don’t use a password or pin, I use a passphrase, and my passphrase is an instance of me confessing to some extremely mild crime.
    • nickff 3y ago
      The courts are not computers; they don't allow simple logical tricks to stop 'the spirit of the law'. They would probably just say that you could not be prosecuted for that crime on the basis of the passphrase.
      • bee_rider 3y ago
        That is annoyingly pragmatic and not fun at all.
        • nickff 3y ago
          If you like rules that are extremely rigid, and interpreted without spirit, you should look at sailboat racing. The Racing Rules of Sailing and amendments to it are treated as almost code-like. The 1988 America's Cup is a paradigmatic example: https://en.wikipedia.org/wiki/1988_America%27s_Cup https://en.wikipedia.org/wiki/1988_America%27s_Cup
• bdcravens 3y ago
  Search warrants can compel you to give police access to your property, which can include your body (in cases of blood draw warrants in the case of DWI). The police can obtain a search warrant for your physical filing cabinet, which includes taking measures to access it if you won't unlock it for them. Police can easily get warrants for your phone; you just can't be compelled to give the code to unlock. I suspect in the future we'll see a different level of cooperation from phone makers.
  • ejb999 3y ago
    yep, surprised it doesn't exist already - one password to get you in, one password to wipe or hide everything you want and then let the police in to a completely sanitized version of what you want them to see.
    • 2OEH8eoCRo0 3y ago
      Because it's a fantastic idea to commit additional felonies to feel like a hackerman. Following the law is for suckers.
    • spockz 3y ago
      TrueCrypt and other tools had this around for ages. Something with nested partitions. One key unlocked the main partition that you are supposed to fill with something credible. And then another key that looks a partition even deeper that should contain your true secrets.
  • zlg_codes 3y ago
    [flagged]
    • 0cf8612b2e1e 3y ago
      I am curious in what situation you think murdering a cop would result in a less bad outcome.
      • 3y ago
• asveikau 3y ago
  Also fourth amendment covers unreasonable searches.
  • 2OEH8eoCRo0 3y ago
    What is unreasonable about a warrant? Where did this adversarial attitude to law enforcement come from? The whole reason we have a rich and functioning society is thanks to law.
    • asveikau 3y ago
      > Where did this adversarial attitude to law enforcement come from? They screw up very frequently. Sometimes maliciously, sometimes through incompetence, sometimes both. I can't convey the depth of this in a small comment box, but there's abundant evidence around on this topic if you care to look. Overall, even when you're talking about legitimately designated authority given to a person ... it's VERRRY easy for a human being to screw up and get it wrong, and it has huge impact over the lives of their targets. Needs to be approached by the authorities with extreme caution. In practice, probably many of them aren't aware of the weight of their actions, or don't care.
      • 2OEH8eoCRo0 3y ago
        > They screw up very frequently Do you have a source for that? Frequently is a relative term. 1,000 fuck-ups can be a lot or a little depending on the total number of interactions we are talking about.
        • asveikau 3y ago
          [flagged]
          • 2OEH8eoCRo0 3y ago
            If you make a claim it's not on everyone else to go find support for your argument.
• dataflow 3y ago
  It's because the 5th Amendment is there to prevent the state from torturing you into confession for a crime and then using that as evidence against you. i.e. the point is to ensure the evidence is genuine and not a false confession given under duress, since most innocent people will say anything to stop pain. (This isn't obvious from the text, though if you ponder "why would they have included this seemingly random narrow right", you can deduce the explanation. But there's bigger historical context re: the Star Chamber if you're interested in looking that up.) Meaning: its point isn't to prevent access to real evidence. It's not an attempt to grant you privacy. It's an attempt to ensure justice is served correctly. This is also why you lose that right when you're granted immunity. The state can force you to provide testimony in that case. Corollary here is that it's actually quite surprising courts are willing to side with the accused here. It's probably only a matter of time before rulings come to the contrary. If you care about privacy as a human right, you really need another amendment to make it solid.
  • atticora 3y ago
    > If you care about privacy as a human right, you really need another amendment to make it solid. You would need some kind of catch-all amendments stating that the enumeration of certain rights shall not be construed to deny others, and that the powers not delegated to the feds are reserved to the States or to the people. You could put them right at the end of the original amendments for emphasis as a closing statement of the Constitution. But if we enacted those who would ever enforce them? The feds would probably treat them as if they didn't exist.
    • dataflow 3y ago
      > But if we enacted those who would ever enforce them? The feds would probably treat them as if they didn't exist. If you make them vague then it'll be easy to interpret them narrowly. If you make them crystal clear, courts would presumably enforce them, like they have in the past.
  • PopePompus 3y ago
    Yup, the US Constitution definitely needs a right to privacy amendment. It is of course spectacularly difficult to amend, but an amendment that ensures a right to choose abortion (and other reproductive privacy issues) plus strong digital privacy rights might garner a coalition of both pro-choice people and libertarians, and that could be enough to get it passed.
• kevin_thibedeau 3y ago
  There are ways to use the law to coerce the desired behavior. Border Patrol will do helpful things like take apart your car if you exercise your rights.
• omginternets 3y ago
  >being forced to give up your passcode is no different then being forced to give up any secrets you might have. Actually, the case is even stronger than you make it out to be. IIRC, one of the key constitutional issues is that providing a password is equivalent to saying "yes, this is mine". So even if we disregard the contents of the device, the issue is that you are establishing a legally relevant relationship with a piece of evidence. I'm recalling this from a looong time ago, when I took a constitutional law class, so I hope those with fresher knowledge not hesitate to jump in.
• deleted 3y ago
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