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"can i be compelled to explain to them what all the little codewords actually mean" I would like to think not, as usually you cannot be made to compell against

"can i be compelled to explain to them what all the little codewords actually mean" I would like to think not, as usually you cannot be made to compell against yourself. The famous right to silence. https://en.wikipedia.org/wiki/Right_to_silence https://en.wikipedia.org/wiki/Right_to_silence Which was the base of this court case (and I think it is troublesome, that it had to be debated at all) "One of the major issues in the law of digital evidence investigations is how the Fifth Amendment privilege against self-incrimination applies to unlocking phones"

mrandish 3y ago
Regarding the "Right to Silence", I recently learned something I didn't know. While I was familiar with the right to remain silent after arrest to avoid self-incrimination (based on the Miranda ruling). There is a separate right to remain silent unrelated to incrimination (5th amendment) but rather tied to 1st amendment free speech. Of course, we're all familiar with free speech rights but is there a corresponding right to "free silence"? It turns out there is but it's not enumerated in the first amendment, so it's called an "implied right." It's been derived by the courts (including the Supreme Court) as logically inferred by the rights which are enumerated in the 1st amendment. What I found interesting is the boundaries of this implied right to silence are currently less well-defined than than the other 1st and 5th amendment rights. Apparently, some cases the court will be deciding this year may involve further fleshing out these fuzzy edges. I'm not an expert but as I recall, the scenarios may include things like whether social media networks can be compelled by a legislative statute to disclose (ie 'speak') their content moderation policies and whether public universities can enforce codes of conduct which may compel speech. Personally, I'm all-in on the vital necessity of robustly expansive free speech rights, so I'm also all-in on robust freedom of silence rights. I used to think I understood the limits of free speech in the U.S. but reading this article by 1st amendment expert Ken White on free speech tropes surprised me. Highly recommended: https://www.theatlantic.com/ideas/archive/2019/08/free-speech-cliches-media-should-stop-using/596506/ https://www.theatlantic.com/ideas/archive/2019/08/free-speec...
- filoeleven 3y ago
  Addendum: you must explicitly invoke your 5th amendment right to silence when being questioned by police in order to prevent your silence being used against you in court. It’s a shit ruling, but it’s also current law. This theoretically only applies if you have answered some questions but remained silent on others. https://www.scotusblog.com/case-files/cases/salinas-v-texas/ https://www.scotusblog.com/case-files/cases/salinas-v-texas/
  - quickthrower2 3y ago
    So Miranda is not enough? Is “Lawyer” enough? Or is this pre-arrest?
    - dharmab 3y ago
      The magic words are "I am using my right to remain silent" followed by silence.
      - owenmarshall 3y ago
        No! In the US, case law has ended up more protective of people who invoke their right to an attorney than those who merely invoke their right to remain silent. In certain cases the police can restart interrogations after invocation of a right to remain silent, but if you invoke the right to an attorney any interrogation must stop until your counsel is present. These exceptions are narrow, but “being interrogated by the police” is the last place to chance stumbling into one. The magic words are: “I will not answer any questions without a lawyer present.”
        filoeleven 3y ago
        Yeah. Also, the police are legally allowed to lie to you, but you are not legally allowed to lie to the police. I’m not interested in lying to the police, but when I know that they can lie to me, it’s a big disincentive to say anything to them at all. This is a problem.
ChrisKnott 3y ago
The thing that allows these password disclosing laws to be compatible with self-incrimination is that the password itself is not the evidence, you are being compelled to give up other documentary evidence that incriminates you. This is common. People (companies in particular) are often forced to give up evidence that is used against them (corporate fraud convictions etc).
PrimeMcFly 3y ago
The reason it's a little different with passwords is passwords are considered to be equivalent to a key to a safe, and people could be required to hand a key over. Although it appears the matter has now been settled as of this ruling.
- kevincox 3y ago
  Can you be compelled to hand it over? What if you lost it? It seems like with a warrant they can be allowed to crack into your safe, and you may prefer to let them use the key so that you still have a working safe at the end of it.
  - PrimeMcFly 3y ago
    There were different court cases in different states that ruled it did have to be handed over. As for whether or not someone genuinely lost it, I guess it would be up to the particulars of that case if they were believed or not. The UK has a rather scary law where even if you do genuinely lose it they just assume you are lying.
    - kevincox 3y ago
      The UK case is always what I assumed the main point of the right to remain silent was about. How can you compell someone to reveal something that you can't prove they know? Memory is fallible and it seems wrong to be incriminated since you forgot something or just never knew it in the first place. The extension of that is you can just always say "I don't know". So the right to remain silent is basically a shortcut to avoid this issue.
    - gustavus 3y ago
      I mean ya but the UK has basically no civil rights at this point, where they throw you in jail for criticizing politicians.
- creer 3y ago
  Not settled > ruling issued today by Utah's state Supreme Court It would take a US Supreme Court ruling. Apparently a few states have ruled in different directions in different circumstances.
neycoda 3y ago
Imagine if somebody took the right to remain silent to our current Supreme Court and they decided that nobody actually has the right to remain silent.

mrandish 3y ago

Regarding the "Right to Silence", I recently learned something I didn't know. While I was familiar with the right to remain silent after arrest to avoid self-incrimination (based on the Miranda ruling). There is a separate right to remain silent unrelated to incrimination (5th amendment) but rather tied to 1st amendment free speech. Of course, we're all familiar with free speech rights but is there a corresponding right to "free silence"? It turns out there is but it's not enumerated in the first amendment, so it's called an "implied right." It's been derived by the courts (including the Supreme Court) as logically inferred by the rights which are enumerated in the 1st amendment. What I found interesting is the boundaries of this implied right to silence are currently less well-defined than than the other 1st and 5th amendment rights. Apparently, some cases the court will be deciding this year may involve further fleshing out these fuzzy edges. I'm not an expert but as I recall, the scenarios may include things like whether social media networks can be compelled by a legislative statute to disclose (ie 'speak') their content moderation policies and whether public universities can enforce codes of conduct which may compel speech. Personally, I'm all-in on the vital necessity of robustly expansive free speech rights, so I'm also all-in on robust freedom of silence rights. I used to think I understood the limits of free speech in the U.S. but reading this article by 1st amendment expert Ken White on free speech tropes surprised me. Highly recommended: https://www.theatlantic.com/ideas/archive/2019/08/free-speech-cliches-media-should-stop-using/596506/ https://www.theatlantic.com/ideas/archive/2019/08/free-speec...

filoeleven 3y ago
Addendum: you must explicitly invoke your 5th amendment right to silence when being questioned by police in order to prevent your silence being used against you in court. It’s a shit ruling, but it’s also current law. This theoretically only applies if you have answered some questions but remained silent on others. https://www.scotusblog.com/case-files/cases/salinas-v-texas/ https://www.scotusblog.com/case-files/cases/salinas-v-texas/
- quickthrower2 3y ago
  So Miranda is not enough? Is “Lawyer” enough? Or is this pre-arrest?
  - dharmab 3y ago
    The magic words are "I am using my right to remain silent" followed by silence.
    - owenmarshall 3y ago
      No! In the US, case law has ended up more protective of people who invoke their right to an attorney than those who merely invoke their right to remain silent. In certain cases the police can restart interrogations after invocation of a right to remain silent, but if you invoke the right to an attorney any interrogation must stop until your counsel is present. These exceptions are narrow, but “being interrogated by the police” is the last place to chance stumbling into one. The magic words are: “I will not answer any questions without a lawyer present.”
      - filoeleven 3y ago
        Yeah. Also, the police are legally allowed to lie to you, but you are not legally allowed to lie to the police. I’m not interested in lying to the police, but when I know that they can lie to me, it’s a big disincentive to say anything to them at all. This is a problem.

ChrisKnott 3y ago

The thing that allows these password disclosing laws to be compatible with self-incrimination is that the password itself is not the evidence, you are being compelled to give up other documentary evidence that incriminates you. This is common. People (companies in particular) are often forced to give up evidence that is used against them (corporate fraud convictions etc).

PrimeMcFly 3y ago

The reason it's a little different with passwords is passwords are considered to be equivalent to a key to a safe, and people could be required to hand a key over. Although it appears the matter has now been settled as of this ruling.

kevincox 3y ago
Can you be compelled to hand it over? What if you lost it? It seems like with a warrant they can be allowed to crack into your safe, and you may prefer to let them use the key so that you still have a working safe at the end of it.
- PrimeMcFly 3y ago
  There were different court cases in different states that ruled it did have to be handed over. As for whether or not someone genuinely lost it, I guess it would be up to the particulars of that case if they were believed or not. The UK has a rather scary law where even if you do genuinely lose it they just assume you are lying.
  - kevincox 3y ago
    The UK case is always what I assumed the main point of the right to remain silent was about. How can you compell someone to reveal something that you can't prove they know? Memory is fallible and it seems wrong to be incriminated since you forgot something or just never knew it in the first place. The extension of that is you can just always say "I don't know". So the right to remain silent is basically a shortcut to avoid this issue.
  - gustavus 3y ago
    I mean ya but the UK has basically no civil rights at this point, where they throw you in jail for criticizing politicians.
creer 3y ago
Not settled > ruling issued today by Utah's state Supreme Court It would take a US Supreme Court ruling. Apparently a few states have ruled in different directions in different circumstances.

neycoda 3y ago

Imagine if somebody took the right to remain silent to our current Supreme Court and they decided that nobody actually has the right to remain silent.