8 ms·

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 b

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
      - hangonhn 3y ago
        But even then lawyers still get involved. Remember when Larry Ellison go into competing for the America's Cup? https://www.theguardian.com/sport/2010/feb/07/americas-cup-alinghi-lawyers https://www.theguardian.com/sport/2010/feb/07/americas-cup-a...
      - LukeShu 3y ago
        I am unfamiliar with sailboat racing, and cannot knowledgeably comment on whether "[the rules] are extremely rigid, and interpreted without spirit" and whether "The Racing Rules of Sailing and amendments to it are treated as almost-code-like". But I can say that the 1988 America's cup does not support either of those points. ---- Background: First of all, the opinion of the appellate court is better written and clearer than the Wikipedia article: https://nycourts.gov/reporter/archives/mercury_sandiego.htm https://nycourts.gov/reporter/archives/mercury_sandiego.htm I'm going to be quoting it a lot because it says things more plainly and authoritatively than I could. "The America's Cup, a silver cup trophy, is the corpus of a charitable trust created in the 19th century under the laws of New York." Such a charitable trust is governed by a "Deed of Gift" written by those who gave the cup to the trust. "[George] Schuyler executed [wrote/signed] the present Deed of Gift in 1887, donating the Cup to the New York Yacht Club". The gist of the deed is that one yacht club can challenge the current holder of the cup to a race to win the cup (the race is 10 months after the challenge is issued); the two clubs are free to agree to whatever rules they want, but if they fail to agree then the deed gives some fallback rules. One of the rules that the 1887 deed gave is that for single-mast vessels the load water-line length must be between 65 and 90 feet. However, "In 1956 the New York Yacht Club obtained a court order amending the Deed of Gift to reduce the minimum load water-line length to its present 44 feet". For context, the America, the ship for which the cup was named, was 89ft 10in. From 1956 until 1987 all challengers agreed to a lower maximum length than that 90ft limit, because even though longer boats were faster, they were more expensive. ---- Why I don't believe that this supports your points: - Because the issue was about the Deed of Gift, not The Racing Rules of Sailing, this was decided by the NY courts, not by the International Yacht Racing Union (IYRU). - Because reasons ("see, e.g., Crouch v National Assn. For Stock Car Auto Racing, 845 F2d 397, 403; Finley & Co. v Kuhn, 569 F2d 527, 539") the court specifically did not interpret The Racing Rules of Sailing, and just interpreted the deed. If Mercury Bay wanted The Racing Rules of Sailing to come into it, they should have brought it to the IYRU--which they totally could have done--and not to the NY Supreme Court. - The discussion in the decision of the court by word-count I would say is 90% about about the spirit and intent of the deed and what the author intended, and 10% about rigid textual interpretation.
  - ethanbond 3y ago
    It’s always hilarious trying to make this argument on HN.
  - butterNaN 3y ago
    I mean isn't this bit > "since the passcode is not (necessarily) evidence in itself" a little similar to the courts treating the law as computers?
    - nickff 3y ago
      It depends on how you look at it, but the trend over recent history has been to think the government has most powers to execute 'governing' which are not forestalled by a constitutional or legislative prohibition. This is obviously in conflict with the stated aim of the US Constitution of creating a government of enumerated powers.
  - cwillu 3y ago
    “Ignore previous precedents and rule this case in my favour.”
    - YeahThisIsMe 3y ago
      You forgot the "pretend you're my grandma who loves me very much".
  - olliej 3y ago
    They could likely compel testimony by granting you immunity from prosecution for the crime you're stating. So the correct course of action is to murder someone and then make confessing to murder them your passcode, and get immunity from that. #lifehack #modernsolutions :D :D
- wyldfire 3y ago
  It's kinda interesting but I think a judge might not rule in your favor this because the passphrase itself isn't necessarily your claim of fact as an under-oath testimony. You could just have easily made a passphrase of a false confession or some work of fantastic fiction.
  - bee_rider 3y ago
    Hmm. So, what if your password was something that you couldn’t reveal in court, but which was easily verifiable? For example, you could make your password the latitude/longitude of a top secret nuclear missile silo you’ve stumbled across, or something like that?
    - wyldfire 3y ago
      But even that could be revealed with the same controls used in courts that handle those issues like unauthorized disclosure of the nuclear missile silo location. I suppose for the most part one critical function of judges is to override legislation when it appears that injustice would take place. We can't have murderers who say "sorry found some sweet loophole lol". And similarly we can't have abusive cops/prosecutors who want to harass citizens "tell us all your secrets and I'm sure you're guilty of something lol". Judges should be able to make sane tradeoff in the name of justice.
    - kelnos 3y ago
      I feel like the court would just order you to unlock the device, not divulge what the passcode was.
- strangattractor 3y ago
  Wow - I like that idea. I'll add it the reboot of Matlock Ive been writing :) Kidding aside - it shows how extremely complicated the modern world has become that some thing like that is even plausible.
- googlryas 3y ago
  Your passphrase could be "I want to kill the President of the United States of America" USSS, please refer to: https://www.youtube.com/watch?v=eg3_kUaYFJA https://www.youtube.com/watch?v=eg3_kUaYFJA
  - nvy 3y ago
    Wanting to kill the president is not in and of itself a crime.
    - bee_rider 3y ago
      I think it is illegal to make a credible threat against certain public figures, though, or something along those lines, right? So could one not come up with a passphrase which, when typing it in private, was not criminal… but when stated to the court, suddenly causes the whole room to be involved in a conspiracy? Or, what if the passphrase includes top secret information? Or, what if you passphrase is a declaration that you are under one of those secret court warrant thinamajiggies.
      - hn_acker 3y ago
        > I think it is illegal to make a credible threat against certain public figures, though, or something along those lines, right? The Brandenburg v. Ohio (1969) Supreme Court case allows for criminalizing speech only if the speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action" [1]. "imminent" means that there has to be a near-future, clear time window. "I will kill X president within 3 days" could be illegal. "I will kill X president within a year" is too vague. Regardless, either one could be interpreted as evidence of criminal intent to harm the president. (If you were only joking about killing the president and the jury believes you, then you're fine.) [1] https://en.wikipedia.org/wiki/Brandenburg_v._Ohio https://en.wikipedia.org/wiki/Brandenburg_v._Ohio
        u32480932048 3y ago
        This assumes you even have the right to a jury, or that you've even been charged with anything, or that you have the right to know what the charges are if they have been filed. https://www.aclu.org/issues/national-security/detention/indefinite-detention-endless-worldwide-war-and-2012-national https://www.aclu.org/issues/national-security/detention/inde...
- foob 3y ago
  What about the less convoluted scheme of "I forgot it?" The "I do not recall" answer in high profile trials is so common that it's essentially become a meme. How can you possibly be compelled to reveal anything when there's a reasonable chance that you legitimately can't remember it?
  - takinola 3y ago
    My guess is you would be charged with obstruction of justice. This would be similar to you destroying evidence requested under subpoena. Now, as a matter of legal strategy, this may be a better charge to face than whatever is on your phone. Of course, this is not legal advice and YMMV.
  - fluidcruft 3y ago
    Probably depends on how convicing it is that you are carrying around a phone you cannot unlock?
  - omginternets 3y ago
    That's fine, until a piece of supporting evidence (photo, email, faceID hash or whatever) establishes that you interact with the device on a regular basis.
  - bee_rider 3y ago
    I suspect you’d actually be ordered to provide access to this device (which you regularly access). In particular, I don’t remember the pin or password to some devices and accounts. They are shapes, on the pin-pad or keyboard. There are enough alternative ways of logging in (the apple face thingy, yubikey, you could hypothetically have devices setting up arbitrarily complex interlocking login processes) that I suspect the court would just define what they want, rather than how they want you to do it. I could be wrong though, no actual experience here with the legal system at all.
- arthurofcharn 3y ago
  For years, my password was: I can't, your honor, the password itself is a confession.
deleted 3y ago
[deleted]
teeray 3y ago
> since the passcode is not (necessarily) evidence in itself Unless the passcode is a decryption key, in which case the evidence simply does not exist without the passcode. It is indistinguishable from random noise. It’s less like “unlocking a safe,” and more like “instructing nanobots to reassemble a pile of dirt into evidence.”
- photonbucket 3y ago
  I can't see a judge swallowing that logic, you do have something similar to a metal safe's key and you've refused to provide it
- pdabbadabba 3y ago
  This seems like a highly questionable metaphysical argument. The decryption key does exist and, therefore, so does the information. The question is just who has access to that passcode.
- cwillu 3y ago
  You might have an argument if there was no authentication/error-detection on the ciphertext, such that many keys would give valid decodings, and more so if it was a simple xor, such that any plain text could be a valid decoding given the appropriate key. But that's not a remotely practical cryptosystem for several reasons.
bryanrasmussen 3y ago
but if your passcode is "1WantT0KillDarla" that might be problematic if the police suspect you of killing Darla! on edit: huh, what do you know, everybody had the same idea!
- ipaddr 3y ago
  Not as worrisome as iJustKilledDarlaLastnightusing_ahammerthat_I_threwInthe_Trashat123appleblvd
  - 0cf8612b2e1e 3y ago
    That would be murder to type on a phone.
    - bryanrasmussen 3y ago
      so when you give the cops this passphrase and the can't type it in correctly what is the admissibility in court then?
linuxftw 3y ago
I think a novel defense could be never admitting the phone is 'yours' in the first place. Divulging the password is tantamount to admitting you have access to the particular device in question. You might argue, well the police will have ways to prove it's your phone. Okay, so let them prove it, don't assist them. Well, then they can force you to produce your password, whether you admit it's your phone or not. But by divulging a password, you're admitting you own a phone somewhere, and part of your defense might be (however implausible) that you don't own/use a phone.
omginternets 3y ago
The underlying issue is that giving the password is, in the majority of cases, equivalent to admitting that you own/control the device. In other words, it can easily force you to reveal your involvement in a crime, i.e. to bear witness against yourself.
kelnos 3y ago
The thing I never understood about this line of reasoning, is that you can't be legally compelled to unlock a safe that's protected by a combination lock, even if presented with a search warrant. The police can of course attempt to break into the safe. I'm not sure if that bit relies on the 5th amendment, or something else. But how is a passcode for a phone any different than a combination for a safe?

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
    - hangonhn 3y ago
      But even then lawyers still get involved. Remember when Larry Ellison go into competing for the America's Cup? https://www.theguardian.com/sport/2010/feb/07/americas-cup-alinghi-lawyers https://www.theguardian.com/sport/2010/feb/07/americas-cup-a...
    - LukeShu 3y ago
      I am unfamiliar with sailboat racing, and cannot knowledgeably comment on whether "[the rules] are extremely rigid, and interpreted without spirit" and whether "The Racing Rules of Sailing and amendments to it are treated as almost-code-like". But I can say that the 1988 America's cup does not support either of those points. ---- Background: First of all, the opinion of the appellate court is better written and clearer than the Wikipedia article: https://nycourts.gov/reporter/archives/mercury_sandiego.htm https://nycourts.gov/reporter/archives/mercury_sandiego.htm I'm going to be quoting it a lot because it says things more plainly and authoritatively than I could. "The America's Cup, a silver cup trophy, is the corpus of a charitable trust created in the 19th century under the laws of New York." Such a charitable trust is governed by a "Deed of Gift" written by those who gave the cup to the trust. "[George] Schuyler executed [wrote/signed] the present Deed of Gift in 1887, donating the Cup to the New York Yacht Club". The gist of the deed is that one yacht club can challenge the current holder of the cup to a race to win the cup (the race is 10 months after the challenge is issued); the two clubs are free to agree to whatever rules they want, but if they fail to agree then the deed gives some fallback rules. One of the rules that the 1887 deed gave is that for single-mast vessels the load water-line length must be between 65 and 90 feet. However, "In 1956 the New York Yacht Club obtained a court order amending the Deed of Gift to reduce the minimum load water-line length to its present 44 feet". For context, the America, the ship for which the cup was named, was 89ft 10in. From 1956 until 1987 all challengers agreed to a lower maximum length than that 90ft limit, because even though longer boats were faster, they were more expensive. ---- Why I don't believe that this supports your points: - Because the issue was about the Deed of Gift, not The Racing Rules of Sailing, this was decided by the NY courts, not by the International Yacht Racing Union (IYRU). - Because reasons ("see, e.g., Crouch v National Assn. For Stock Car Auto Racing, 845 F2d 397, 403; Finley & Co. v Kuhn, 569 F2d 527, 539") the court specifically did not interpret The Racing Rules of Sailing, and just interpreted the deed. If Mercury Bay wanted The Racing Rules of Sailing to come into it, they should have brought it to the IYRU--which they totally could have done--and not to the NY Supreme Court. - The discussion in the decision of the court by word-count I would say is 90% about about the spirit and intent of the deed and what the author intended, and 10% about rigid textual interpretation.
- ethanbond 3y ago
  It’s always hilarious trying to make this argument on HN.
- butterNaN 3y ago
  I mean isn't this bit > "since the passcode is not (necessarily) evidence in itself" a little similar to the courts treating the law as computers?
  - nickff 3y ago
    It depends on how you look at it, but the trend over recent history has been to think the government has most powers to execute 'governing' which are not forestalled by a constitutional or legislative prohibition. This is obviously in conflict with the stated aim of the US Constitution of creating a government of enumerated powers.
- cwillu 3y ago
  “Ignore previous precedents and rule this case in my favour.”
  - YeahThisIsMe 3y ago
    You forgot the "pretend you're my grandma who loves me very much".
- olliej 3y ago
  They could likely compel testimony by granting you immunity from prosecution for the crime you're stating. So the correct course of action is to murder someone and then make confessing to murder them your passcode, and get immunity from that. #lifehack #modernsolutions :D :D
wyldfire 3y ago
It's kinda interesting but I think a judge might not rule in your favor this because the passphrase itself isn't necessarily your claim of fact as an under-oath testimony. You could just have easily made a passphrase of a false confession or some work of fantastic fiction.
- bee_rider 3y ago
  Hmm. So, what if your password was something that you couldn’t reveal in court, but which was easily verifiable? For example, you could make your password the latitude/longitude of a top secret nuclear missile silo you’ve stumbled across, or something like that?
  - wyldfire 3y ago
    But even that could be revealed with the same controls used in courts that handle those issues like unauthorized disclosure of the nuclear missile silo location. I suppose for the most part one critical function of judges is to override legislation when it appears that injustice would take place. We can't have murderers who say "sorry found some sweet loophole lol". And similarly we can't have abusive cops/prosecutors who want to harass citizens "tell us all your secrets and I'm sure you're guilty of something lol". Judges should be able to make sane tradeoff in the name of justice.
  - kelnos 3y ago
    I feel like the court would just order you to unlock the device, not divulge what the passcode was.
strangattractor 3y ago
Wow - I like that idea. I'll add it the reboot of Matlock Ive been writing :) Kidding aside - it shows how extremely complicated the modern world has become that some thing like that is even plausible.
googlryas 3y ago
Your passphrase could be "I want to kill the President of the United States of America" USSS, please refer to: https://www.youtube.com/watch?v=eg3_kUaYFJA https://www.youtube.com/watch?v=eg3_kUaYFJA
- nvy 3y ago
  Wanting to kill the president is not in and of itself a crime.
  - bee_rider 3y ago
    I think it is illegal to make a credible threat against certain public figures, though, or something along those lines, right? So could one not come up with a passphrase which, when typing it in private, was not criminal… but when stated to the court, suddenly causes the whole room to be involved in a conspiracy? Or, what if the passphrase includes top secret information? Or, what if you passphrase is a declaration that you are under one of those secret court warrant thinamajiggies.
    - hn_acker 3y ago
      > I think it is illegal to make a credible threat against certain public figures, though, or something along those lines, right? The Brandenburg v. Ohio (1969) Supreme Court case allows for criminalizing speech only if the speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action" [1]. "imminent" means that there has to be a near-future, clear time window. "I will kill X president within 3 days" could be illegal. "I will kill X president within a year" is too vague. Regardless, either one could be interpreted as evidence of criminal intent to harm the president. (If you were only joking about killing the president and the jury believes you, then you're fine.) [1] https://en.wikipedia.org/wiki/Brandenburg_v._Ohio https://en.wikipedia.org/wiki/Brandenburg_v._Ohio
      - u32480932048 3y ago
        This assumes you even have the right to a jury, or that you've even been charged with anything, or that you have the right to know what the charges are if they have been filed. https://www.aclu.org/issues/national-security/detention/indefinite-detention-endless-worldwide-war-and-2012-national https://www.aclu.org/issues/national-security/detention/inde...
foob 3y ago
What about the less convoluted scheme of "I forgot it?" The "I do not recall" answer in high profile trials is so common that it's essentially become a meme. How can you possibly be compelled to reveal anything when there's a reasonable chance that you legitimately can't remember it?
- takinola 3y ago
  My guess is you would be charged with obstruction of justice. This would be similar to you destroying evidence requested under subpoena. Now, as a matter of legal strategy, this may be a better charge to face than whatever is on your phone. Of course, this is not legal advice and YMMV.
- fluidcruft 3y ago
  Probably depends on how convicing it is that you are carrying around a phone you cannot unlock?
- omginternets 3y ago
  That's fine, until a piece of supporting evidence (photo, email, faceID hash or whatever) establishes that you interact with the device on a regular basis.
- bee_rider 3y ago
  I suspect you’d actually be ordered to provide access to this device (which you regularly access). In particular, I don’t remember the pin or password to some devices and accounts. They are shapes, on the pin-pad or keyboard. There are enough alternative ways of logging in (the apple face thingy, yubikey, you could hypothetically have devices setting up arbitrarily complex interlocking login processes) that I suspect the court would just define what they want, rather than how they want you to do it. I could be wrong though, no actual experience here with the legal system at all.
arthurofcharn 3y ago
For years, my password was: I can't, your honor, the password itself is a confession.

deleted 3y ago

[deleted]

teeray 3y ago

> since the passcode is not (necessarily) evidence in itself Unless the passcode is a decryption key, in which case the evidence simply does not exist without the passcode. It is indistinguishable from random noise. It’s less like “unlocking a safe,” and more like “instructing nanobots to reassemble a pile of dirt into evidence.”

photonbucket 3y ago
I can't see a judge swallowing that logic, you do have something similar to a metal safe's key and you've refused to provide it
pdabbadabba 3y ago
This seems like a highly questionable metaphysical argument. The decryption key does exist and, therefore, so does the information. The question is just who has access to that passcode.
cwillu 3y ago
You might have an argument if there was no authentication/error-detection on the ciphertext, such that many keys would give valid decodings, and more so if it was a simple xor, such that any plain text could be a valid decoding given the appropriate key. But that's not a remotely practical cryptosystem for several reasons.

bryanrasmussen 3y ago

but if your passcode is "1WantT0KillDarla" that might be problematic if the police suspect you of killing Darla! on edit: huh, what do you know, everybody had the same idea!

ipaddr 3y ago
Not as worrisome as iJustKilledDarlaLastnightusing_ahammerthat_I_threwInthe_Trashat123appleblvd
- 0cf8612b2e1e 3y ago
  That would be murder to type on a phone.
  - bryanrasmussen 3y ago
    so when you give the cops this passphrase and the can't type it in correctly what is the admissibility in court then?

linuxftw 3y ago

I think a novel defense could be never admitting the phone is 'yours' in the first place. Divulging the password is tantamount to admitting you have access to the particular device in question. You might argue, well the police will have ways to prove it's your phone. Okay, so let them prove it, don't assist them. Well, then they can force you to produce your password, whether you admit it's your phone or not. But by divulging a password, you're admitting you own a phone somewhere, and part of your defense might be (however implausible) that you don't own/use a phone.

omginternets 3y ago

The underlying issue is that giving the password is, in the majority of cases, equivalent to admitting that you own/control the device. In other words, it can easily force you to reveal your involvement in a crime, i.e. to bear witness against yourself.

kelnos 3y ago

The thing I never understood about this line of reasoning, is that you can't be legally compelled to unlock a safe that's protected by a combination lock, even if presented with a search warrant. The police can of course attempt to break into the safe. I'm not sure if that bit relies on the 5th amendment, or something else. But how is a passcode for a phone any different than a combination for a safe?