There is a high probability that this will be challenged at a higher level.
If you have evidence of a crime on your phone, it must be part of the process.
There's nothing remotely unlawful about search of property so long as there is merit, oversight, warrant etc..
Ultimately, this will be no different than searching your car.
Now, the cops doing it without a warrant, shenanigans at the border, searchings stuff they should not be - this is all another matter entirely.
There will be some weird scenarios around people 'forgetting' passwords etc. but otherwise, it's just a new angle on the same old thing.
Those who would like to see better judicial reform I think should look elsewhere, into such issues as why/how warrants are issued, the transparency around them, etc..
With fingerprints or face scanning, neither of these is an issue. You put your fingerprint on the device, or you scan your face.
So, I think that forcing someone to reveal a secret that is purely in their head is fundamentally different than compelling other forms of access (physical keys, fingerprint scans, face scans, etc.). The physical access methods can be verified to either work or not. That's not true for mental secrets.
If that is the case then there should be no problem convicting him.
In a filesharing seneario it is common for feds to see what you got before the raid that grabs the physical drive.
The law is actually that physical features/etc can be compelled because they are not testimonial.
“[i]t is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have.”
United States v. Wade
"“the task that Diamond was compelled to perform—to provide his fingerprint—is no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing.”"
State v. Diamond (This is a state case but applying the federal constitution).
Note also that fingerprints are almost always taken at booking, etc. They just aren't transferable in a way that lets the police use them to unlock the phone.
Passcodes, on the other hand are often testimonial. Entering the combination to a safe proves you probably had ownership/control of the safe, for example.
In those situations, generally the government has to be able to prove that you own it. If they can, you will be forced to open the safe.
In the case of phones, the only interesting intermediate cases are phones where ownership can't be proven easily by other evidence.
(Note:I don't necessarily agree with these doctrines, but that is the current law)
Is this not also true for face/fingerprint ID? Proving the face/fingerprint ID proves you probably had ownership control of the device.
We treat biometrics like a secret (i.e. password), but really it's not much better than public information (i.e. username).
:I
Forcing a suspect to divulge information that is directly incriminating will not stand constitutional review, regardless of the nature of the information.
You have the right to remain silent.
Or what if a suspects fingerprint was taken without his consent by the police, and compared against a fingerprint taken from the murder weapon? Is that self incrimination?
I'm not seeing the "self incrimination" angle for face or fingerprint scans here. For classical passwords yes, but not for biometrics.
It is admittedly a weaker argument from a pure physical standpoint but the law doesn't operate based upon that anyway. Any judge would throw out a request in discovery for the defendant to produce a recording confessing their guilt even for legitimate comparative purposes and many other requests or demands that would be unduly prejudicial for 5th amendment reasons.
If they have a warrant to check the phone, and if taking fingerprints of the arrested without consent has already been found constitutional, I just don't see a problem.
Consider the password case, you can't be compelled to give your password, but the government is allowed to throw all of their hacking prowess against your device to crack that password. They can even ask you about the name of your first pet to get through security questions. Though they can't compel you to answer truly regarding the name of your first pet.
Even if your encrypted laptop contains evidence, you cannot plead the fifth if the prosecutors know it’s there. As long as they can get a warrant and when they get the data say “see your honor? Here is the evidence we knew was there!”, it doesn’t fall under the fifth.
Self incrimination would be if you are charged with tax fraud and proof is on your encrypted drive and the prosecution knows this, but also on that drive is records of money laundering, a separate crime they do not know about. This is when pleading the fifth would apply. By decrypting the laptop, you would incriminate yourself in a second crime, that you were not being charged with. Presumably if you were coerced into decrypting the laptop in this case, you could use the argument that the money laundering evidence can not be admitted into court because it was obtained inappropriately.
IANAL and this ain’t legal advice. Stay in school kids.
It depends on what you are charged with.
In a case of say, possession of stolen information, the laws of possession applied to contraband such as drugs would likely apply.
Since the information wouldn't be in your actual possession(literally in your hands or on your person), then they would fall under constructive possession laws.
In most states, constructive possession has 3 parts --
1) You must have knowledge of the presence of the contraband
2) You must know of the contraband's illicit nature
3) You must have the ability to exercise dominion and control over the contraband.
If I slip an encrypted thumb drive full of stolen trade secrets into your suitcase at the airport, you're not automatically in possession of those things because, absent any other information, none of the rules above could be satisfied.
But, if you knew the encryption key to the thumb drive, then that is evidence against you and that knowledge would be protected under the 5th amendment.
If police find a random iPhone in your house that you share with a roommate, they would have to prove constructive possession to tie anything found on that device to you. Knowledge of the password, regardless of what the password is, would be protected under the 5th amendment.
In both cases, the authorities could not compel you to incriminate yourself by forcing you to disclose your knowledge of the password to the device.
IANAL either. If you are ever in such a situation, be prepared to sit in prison for 10 years while you work your way through the appellate courts, because you're in for a long battle.
That sounds like the 'foregone conclusion' doctrine.
When it is a 'foregone conclusion' that the data is present on a device, you can be compelled to produce that data by decryption. However, if you are so compelled, the fact that you were able to decrypt that data can't be used against you. So they will need another way to tie you to the data.
An example is if police saw you had classified documents on your computer (by e.g. a video camera) and later confiscate the computer and find it to be encrypted.
Usually, though, they are going to be after what the password is protecting. If you try to invoke the 5th claiming that admitting knowledge of the password itself would be incriminating, prosecutors can grant you immunity over that and that greatly reduces your 5th Amendment protections with regard to that particular subject.
Police: "We have a warrant for your apartment, let us in"
Suspect: "Sorry, I lost the key when I went hiking in the Rocky Mountains, there's no way in. Oh, and be aware that if you try to force your way in more than 5 times, the apartment will catch fire and destroy everything inside"
What would happen in this case? Can the suspect be held in contempt?
Nominally, the reason they check your bag at the airport is for security. But in the process they can find all sorts of other stuff that isn't dangerous to fly with but is illegal, e.g. marijuana. So the whole thing becomes an avenue to warrantless search.
You can't make the same argument about a computer or phone -- you can't bring down a plane or hurt anyone by having certain pictures on your hard drive. Anything you could do with a phone (e.g. trigger a bomb) would require some other physical infiltration, which hopefully would be caught by all the scanning and searching of people and baggage that we do already.
So I would hope that a sensible explicitly disallows this "airport loophole" in the process of bringing phone search into the normal legal process of warranted search... but I am doubtful. There are powerful people in the USA, UK, Australia, etc. would love the unfettered ability to search the phone of every air traveler.
I agree, the physical phone itself should be part of discovery. Authorities should be allowed to physically disassemble the phone and inspect its insides or run forensic tests on it.
The content on the phone is a matter of interpretation, subject to proper decryption. It is just an idea, no different from decoding ideas in somebody's journal. It makes no sense to talk about discovery of this.
A phone isn't a car. It's an extension of my brain. I use it to store memories that I offload from my brain. As an example I used to have 50 to 100 phone numbers memorized. Now I have zero because they are on the external part of my brain.
I see this as no different than having to decode the secret code in the ledger. You can see the encrypted data. I'm not required to decrypt it. (or am I? I don't know the law on coded ledgers)
Then access it. If you can't access, do good police work and (legally) acquire access to it. If the entire success of your case hinges on convincing someone to incriminate themselves by giving you the password, build a better case before arresting them or tipping them off to the investigation.
> Ultimately, this will be no different than searching your car.
This can be done 100% with the accused's intervention. A LEO can see something that gives them probable cause for a warrant. A locksmith can open the car or the LEO can simply break the window and unlock it.
Just because the police don't have the technical ability to get into a phone without the user's intervention doesn't mean that person should be forced to divulge information that could incriminate them.
But, unlocking a phone should come with a lot of paper work and checks and balances to ensure that it's done only when really required?
I imagine the situation with electronics will be similar. If a key to, say, an encrypted volume is stored on a flash drive then they may compel someone to produce it (analogous to a safe key). But if the drive is protected by a password, then the government cannot compel someone to provide the secret.
Another circuit will disagree with the 9th circuit and the supreme is forced to take the case, they wont uphold a novel 9th circuit ruling
There isnt an interpretation of the constitution possible for them to, and a the composition of the court makes this even more unlikely to pluck from thin air