Police push legal boundaries to get into cellphones
nbcnews.com
nbcnews.com
The police have a right to attempt you trick you into giving up information you shouldn't. Plead the fifth/don't talk to the police.
>So he refused, and was locked up on the drug and firearms charges.
This is fair.
>Five days later, after Montanez was bailed out of jail, a deputy from the Hillsborough County Sheriff’s Office tracked him down, handed him the warrants and demanded the phone passcodes. Again, Montanez refused. Prosecutors went to a judge, who ordered him locked up again for contempt of court.
This is also fair. The police acquired a warrant and presented the warrant legally. The man refused, committing the crime of contempt of court, which is a fair and just punishment for refusing to heed a court-issued warrant. It's also within his right to decide to serve the time for contempt of court rather than providing the password.
Yes, there are lots of bigger issues touched upon in this story, but the headline seems sensationalist. Didn't the police do the right thing by obtaining a warrant for the password?
> spending 44 days behind bars before the THC and gun charges were dropped, the contempt order got tossed and he pleaded guilty to a misdemeanor pot charge. And yet he regrets nothing, because he now sees his defiance as taking a stand against the abuse of his rights.
However failing to comply with the police and then a court order seemed to work in his favor. I imagine the consequences of him committing felonies and allowing the police to get even more evidence would have been worse than just 44 days and a misdemeanor and whatever he paid his attorneys.
In many situations you cannot be forced to provide evidence that would be used against you or information which would lead to such evidence. I would go further and say that in all cases you shouldn't be required to provide such information.
It should be recognized as a basic right that you do not have to aid those who are trying to convict you of a crime. Our system of justice is adversarial for good reason and it is explicit in forcing those with the most power to limit the use of that power for the benefit of the accused. Without those checks and balances (and frequently even with them) abuse of that power, under the auspices of a greater good, would be common.
If you have illegal materials in your home, and the cops present a warrant to search your house, should you have the right to shut the door and not let them in?
A judge signs a warrant to perform a forensic search of the individual's hard drive. The individual refuses.
So then, it's just tough shit for the police right? Given that they can't get in on their own with a warrant.
Your proposal is also unworkable. Should companies not be required to hand over corporate records, because those might implicate them in a crime? Should a murder suspect be allowed to deny police access to his shed, where the murder weapon might be hiding? A bedrock principle of law is that “the law is entitled to every man’s evidence.” The whole point of warrants is to reconcile that principle with private property—to create a structured way for police to access private property to get access to evidence. Your proposal isn’t a “check” or “balance”—it obliterates that principle. It allows wrongdoers to hide evidence of their crimes even against a valid warrant.
1. Sometimes knowledge of the password itself could be considered testimonial. If there is doubt as to whether or not the an individual owns a particular computer, then being forced to provide the password is tantamount to being forced to concede ownership, which would violate protections against self incrimination.
2. People do legitimately forget passwords, and the courts have no way of distinguishing between people who have genuinely forgotten and those who falsely claim to have forgotten. Being subjected to indefinite detention for forgetting a password would violate due process, while keeping someone in jail until they comply with a legal warrant is legitimate. Since the court cannot distinguish between these two cases, any penalty the court may impose for contempt runs a variable (depending on the facts of the case) but non-zero risk of being a miscarriage of justice.
The FBI wouldn't execute a search warrant and miss a bunch of drugs and drug paraphernalia.
You don't get jailed for obstruction on the say so of the FBI.
The Judge doesn't interrogate the defendant ever.
Like the guy in the OP you don't get to just refuse to provide the PW. The Judge would hold in contempt.
A Federal judge wouldn't order property held by the local PD returned. And why would they have it if the FBI conducted the raid and was doing the forensics?
"Assume That Every Computer Has Been Rigged To Destroy Evidence"
https://www.govtech.com/magazines/gt/Computer-Evidence-Proce... [1997]
A more accurate analogy is forcing the suspect to help the police in accessing his shed.
Possible subtleties include:
* Is requiring someone to enter a password into a computer equivalent to compelling them to disclose it?
* Is compelling someone to confirm or deny knowledge of a password forced testimony because it implies the person has control over the data that password protects (assuming that's not established by other evidence).
* Is compelling someone to produce the unencrypted contents of a storage device equivalent to compelling them to disclose the password or key?
Also, think about the implications of this. What if the person being ordered to hand over the password says "I forgot"? How do we know if they have genuinely forgotten the password?
1. https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_...
Testimony is stuff you’d tell a jury. In the bank account example, you’d tell the jury: this account was used by the criminal, and the accused knew the password, it must be his account. You wouldn’t tell the jury “the accused knew the password to what was undisputedly his own phone.”
If you attend a trial, you'll hear a lot of things you either do or don't believe, and not many will be gray.
If an otherwise normal person claims to have forgotten the passcode to their phone that they used every day, few judges would buy it.
I'm curious what case law there is there for this situation.
I change my passwords fairly frequently using a password generator, so if I don't use the password regularly, I forget it quickly. If someone brought me an old laptop of mine, it's more likely than not I genuinely wouldn't remember the password for it.
Also, there's the situation where someone isn't sure if the order to give their password is legal, so a court battle ensues for a year, but then even if they lose at the Supreme Court, what if in that year they forgot their password simply because they hadn't used it in so long?
Most people think they can make a better adversarial system by tweaking this or that rule, but the unwanted outcomes are baked into the adversarial approach. What works between individual humans (more or less) doesn't translate well to conflicts between individual humans and collective entities which constitute facets of the state, bth because of the yawning asymmetries involved and because the state is necessarily and unavoidably schizoid due to the distributed nature of its consciousness and that of those who comprise its cellular elements.
Strong crypto means the police can’t force their way in. But that doesn’t mean they should sprout new rights to force people to help.
Obviously you will be detained if you try and prevent lawful execution of a search warrant. But its kind of a false equivalency saw that not providing a passcode is the same.
From the Justice John Paul Stevens dissent from Justice John Paul Stevens (487 U.S. 201)
A defendant can be compelled to produce material evidence
that is incriminating. Fingerprints, blood samples, voice
exemplars, handwriting specimens, or other items of
physical evidence may be extracted from a defendant
against his will. But can he be compelled to use his
mind to assist the prosecution in convicting him of a
crime? I think not. He may in some cases be forced to
surrender a key to a strongbox containing incriminating
documents, but I do not believe he can be compelled to
reveal the combination to his wall safe — by word or
deed.
https://www.law.cornell.edu/supremecourt/text/487/201 https://caselaw.findlaw.com/us-supreme-court/530/27.html
Is forcing the revelation of a passcode more akin to speech, or is it more akin to providing a physical key?
The former is currently illegal, but being challenged in many jurisdictions. The latter is legal.
Thus the simultaneous push for Apple and others to provide back-doors. And large sums of money paid by the FBI to Israeli(?) IT firms to crack phones.
> No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
He’s not being asked to testify against himself at trial, which is literally what “being a witness” means. The Fifth Amendment has already been stretched far beyond its text, to encompass lots of scenarios where a person is ordered to reveal potentially incriminating information. It’s being turned into something very different from what it was written as—a general purpose right not to be compelled to aid in your own prosecution.
If it was a corporate phone, and the company IT guy gave the police the password, would you call the IT guy a "witness?" Generally, you wouldn't. The password is not evidence--it doesn't matter to the case whether it's "123" or "ABC." Neither does knowledge of the password tend to prove innocence or guilt. For the same reason, forcing someone to disclose their password is not compelling them to be a witness.
Now, the IT guy might be a witness if, for example, there is a dispute about who owns a phone (say it was found at the scene of the crime), and the IT guy testifies that the company issued the accused that phone. That goes to the substance of the case--it links the crime scene to the accused. That is being a witness. In that circumstance, the Fifth Amendment should protect an accused from having to disclose that same information.
Why wouldn’t I call the IT guy a witness if he’s providing access to information relevant to your prosecution?
You would not call the IT guy a witness, because “providing access to information” is not “testifying.” A witness is someone who has facts relevant to the charges, and who testifies those facts to the jury based on her personal knowledge. The IT guy has no personal knowledge of the crime and won’t be called to tell the jury about it.
A good litmus test is: would you possibly tell this information to the jury? You may need to know the accused’s office number to search it. But that office number isn’t relevant information to the case in and of itself. It wouldn’t be a point you’d tell the jury. And the receptionist that tells you it isn’t a witness.
This doesn’t sound right. For example, what’s the difference between being compelled to give up your password and being compelled to reveal where you buried a murder victim?
For example, they're searching for child porn, and they find you're pirating TV shows... they can't prosecute for the pirate shows. The exception is usually only for something like murder/manslaughter.
IANAL, and this is only my understanding. The warrant itself may have been excessively broad or generic though.
What is the court going to do? Lock him up indefinitely?
Alright side stepping that barrel of worms, it still is the law until overturned.
The article also mentions that the law is not settled as to whether, and under what circumstances a court may compel the disclosure of a password. In the 11th circuit, courts are generally not empowered to compel decryption[0]. Being forced to disclose a password or key is treated as equivalent to being forced to testify against one's self, which is expressly prohibited by the fifth amendment. Florida is in the 11th circuit, and Montanez might have grounds for a lawsuit here.
[0] https://www.eff.org/press/releases/appeals-court-upholds-con...
And if not, what is the difference between being ordered to confess and being ordered to produce evidence harmful to yourself?
Courts should have the right to seek evidence, no one is disputing that, nor is anyone disputing the rights of the court to seek that evidence unmolested, but there is a difference between seeking evidence and mandating compliance.
As far as I am concerned courts should not have any right to compel any action, particularly specific action. They should only have a right to compel inaction. In short, the court can issue warrants that permit their officers to conduct actions that would otherwise be illegal, for example entering my house without my permission, and they may even compel me to stand outside and not interfere while they do so, but they should never be able to compel me to open the door for them.
If they have a warrant and don’t open the door, they will break it down with a sledge hammer.
One has constitutional protection from the fifth amendment and the other doesn't.
Remember, it's up to the prosecutor to build on the evidence they have. If they don't have your phone they don't have much evidence. And it is my belief your passcode is your thoughts.
What if he gave them the codes? They would have noodled around his phone until they found something else. That traffic stop could have become felony possession and that felony possession could have been upgraded to felony distribution if someone had sent him a message to pick up something on the way back.
Maybe a tertiary duress code that starts a timer and performs predefined actions after {n} minutes. i.e. send control code to a server, notify friends, family, lawyer you are under duress with GPS coordinates, wipe phone at the risk of destroying evidence, start sending audio to youtube, transfer / delegate data to a different predefined device, etc... Might be useful if you are being mugged.
https://www.legalmatch.com/law-library/article/can-the-polic...
The answer is yes, with a search warrant. Therefore, I see no reason that a phone should be treated differently.
I haven't really used the feature yet but thought it was a really cool idea. https://www.pcsteps.com/18454-second-android-user-account-xi...
Cell phones routinely keep a log of who you've been talking to, when, and a big chunk of the actual contents. They also will often collect location history, or broadcast the location to third parties as part of their normal operation.
-ok ill let you know how to find me when i hear the safe word
Perhaps a spoken phrase from the user that initiates the lock within the lock?
alternatively live dangerously and default wakeup mode is to trigger the self destruct, unless the trigger is deactivated [by a password of course.] if the cops dont know how to use your phone and they brick your phone they have caused damage.
im not sure how well it would work if they plugged your "phone" usb port into thier equipment, only to realize your "phone" is actually a super capacitor device, with a charge level display. It could be sabotage, but we are developers and engineers after all so all sorts of prototypes could end up in the hands of someone ignorant of the device function. Im sure a warning "you dont want to plug that in there!" would fall on deaf ears but is a point in your own defence.
or alexa play hide n seek.