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Drawing a legal distinction between a password to unlock and a fingerprint to unlock is absurd. Legally, the method of restricting access (physical key, combin

by a_c_s 12y ago

Drawing a legal distinction between a password to unlock and a fingerprint to unlock is absurd. Legally, the method of restricting access (physical key, combination safe, fingerprint, password) should have no bearing on whether somebody can be compelled to provide access. A smartphone filled with documents should be legally equivalent to a locked filing cabinet. Either both should be compellable or neither.

rayiner 12y ago
> Drawing a legal distinction between a password to unlock and a fingerprint to unlock is absurd. Yes, but the distinction is drawn because privacy advocates don't have much else to hang their hat on here. A court can compel you to open a locked filing cabinet. That's open and shut. Saying that giving up a password is testimonial leaves open an angle to distinguish cell phones from locked filing cabinets. The purpose of the 5th amendment was to keep people from having to testify as a witness against themselves, which has a very prejudicial effect on juries. It was not intended to be a blanket protection against investigation of your personal assets by court order.
- DannyBee 12y ago
  I agree that privacy advocated don't have a lot to hang their hat on here. However, just a few notes: " Saying that giving up a password is testimonial leaves open an angle to distinguish cell phones from locked filing cabinets." Well, it is testimonial in some cases, as i'm sure you know. If the government can essentially prove that they don't need your password to prove your access/control to that device, they can often get your password. But there are cases where it is testimonial. A laptop in a shared house for example, that has encrypted child pornography. Part of their case will be proving it is your laptop. If you dispute that fact, they aren't going to be able to prove it by requesting you enter the password, even if they can prove you have the password. IE you are only generally protected from revealing it if revealing it would establish something about access/control to the device the government can't prove otherwise. With the caveat that if they offer immunity for using your production in the prosecution, they can often get access. Additionally, the government will almost never request the password itself, because that is often considered specific testimony concerning a fact. They will request you produce a document that is on the encrypted device, because they are allowed to ask for that. They will then offer immunity for the act of production. See, for example, this order: http://federalevidence.com/pdf/Comput/Fricosu.Ord.1-23-12.pdf http://federalevidence.com/pdf/Comput/Fricosu.Ord.1-23-12.pd... which says "That the government SHALL BE precluded from using Ms. Fricosu’s act of production of the unencrypted contents of the computer’s hard drive against her in any prosecution".
  - dllthomas 12y ago
    I've seen discussion of this, but is it really different than producing (or failing to) a physical key for a lockbox?
ademarre 12y ago
A fingerprint is more like a username than a password. It is simply not a secret credential. A password that is left behind on everything its owner touches isn't very secure.

by a_c_s 12y ago

rayiner 12y ago

> Drawing a legal distinction between a password to unlock and a fingerprint to unlock is absurd. Yes, but the distinction is drawn because privacy advocates don't have much else to hang their hat on here. A court can compel you to open a locked filing cabinet. That's open and shut. Saying that giving up a password is testimonial leaves open an angle to distinguish cell phones from locked filing cabinets. The purpose of the 5th amendment was to keep people from having to testify as a witness against themselves, which has a very prejudicial effect on juries. It was not intended to be a blanket protection against investigation of your personal assets by court order.

DannyBee 12y ago
I agree that privacy advocated don't have a lot to hang their hat on here. However, just a few notes: " Saying that giving up a password is testimonial leaves open an angle to distinguish cell phones from locked filing cabinets." Well, it is testimonial in some cases, as i'm sure you know. If the government can essentially prove that they don't need your password to prove your access/control to that device, they can often get your password. But there are cases where it is testimonial. A laptop in a shared house for example, that has encrypted child pornography. Part of their case will be proving it is your laptop. If you dispute that fact, they aren't going to be able to prove it by requesting you enter the password, even if they can prove you have the password. IE you are only generally protected from revealing it if revealing it would establish something about access/control to the device the government can't prove otherwise. With the caveat that if they offer immunity for using your production in the prosecution, they can often get access. Additionally, the government will almost never request the password itself, because that is often considered specific testimony concerning a fact. They will request you produce a document that is on the encrypted device, because they are allowed to ask for that. They will then offer immunity for the act of production. See, for example, this order: http://federalevidence.com/pdf/Comput/Fricosu.Ord.1-23-12.pdf http://federalevidence.com/pdf/Comput/Fricosu.Ord.1-23-12.pd... which says "That the government SHALL BE precluded from using Ms. Fricosu’s act of production of the unencrypted contents of the computer’s hard drive against her in any prosecution".
- dllthomas 12y ago
  I've seen discussion of this, but is it really different than producing (or failing to) a physical key for a lockbox?

ademarre 12y ago

A fingerprint is more like a username than a password. It is simply not a secret credential. A password that is left behind on everything its owner touches isn't very secure.