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"The first question is whether the government can lawfully compel the telephone’s owner to divulge the passcode. I believe the answer is that yes, a person can

by cwyers 12y ago

"The first question is whether the government can lawfully compel the telephone’s owner to divulge the passcode. I believe the answer is that yes, a person can in fact face punishment for refusal to enter in the password to decrypt his own phone. If the government obtains a subpoena ordering the person to enter in the passcode, and the person refuses or falsely claims not to know the passcode, a person can be held in contempt for failure to comply." Soooooooooo... there already is a legal mechanism to force the phone's owner to divulge the password. Why isn't that enough?

jrochkind1 12y ago
This actually isn't entirely settled law. Some argue that the 5th ammendment protection from self-incrimination would give someone the right not to give up their passcode. But different courts have ruled differently in differnet situations/jurisdictions, so far.
- brigade 12y ago
  As mentioned in the article, the current (and consistent across existing rulings) legal theory is that the 5th amendment doesn't apply if it's already been "proven" that you know the passcode, since the self-incrimination is divulging the fact that you know the passcode to incriminating files (therefore, by implication you're responsible for the existence of said files) And since you're not proving this to a jury, but rather a judge, the standard of proof is going to be pretty low for a smartphone. Orin Kerr thinks possession of a phone at time of arrest will be enough to prove to a judge that you know the passcode, and given how low-level judges operate in the real world I'm inclined to agree (in practice, not legal theory or what's just.) Anyway, iCloud backups are still fair game, so it's not like LEOs can't typically get the information they want anyway even without the passcode.
andrewchambers 12y ago
I don't know how they can reasonably prove you remember what the code is.
- hangonhn 12y ago
  Because most people use their phones on a daily basis, it would be rather difficult to convince a jury that you don't remember, especially when most, if not all, members of the jury will have a smart phone themselves.
- deleted 12y ago
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by cwyers 12y ago

jrochkind1 12y ago

This actually isn't entirely settled law. Some argue that the 5th ammendment protection from self-incrimination would give someone the right not to give up their passcode. But different courts have ruled differently in differnet situations/jurisdictions, so far.

brigade 12y ago
As mentioned in the article, the current (and consistent across existing rulings) legal theory is that the 5th amendment doesn't apply if it's already been "proven" that you know the passcode, since the self-incrimination is divulging the fact that you know the passcode to incriminating files (therefore, by implication you're responsible for the existence of said files) And since you're not proving this to a jury, but rather a judge, the standard of proof is going to be pretty low for a smartphone. Orin Kerr thinks possession of a phone at time of arrest will be enough to prove to a judge that you know the passcode, and given how low-level judges operate in the real world I'm inclined to agree (in practice, not legal theory or what's just.) Anyway, iCloud backups are still fair game, so it's not like LEOs can't typically get the information they want anyway even without the passcode.

andrewchambers 12y ago

I don't know how they can reasonably prove you remember what the code is.

hangonhn 12y ago
Because most people use their phones on a daily basis, it would be rather difficult to convince a jury that you don't remember, especially when most, if not all, members of the jury will have a smart phone themselves.
deleted 12y ago
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