NJ Supreme Court: No 5th Amendment right not to unlock your phone | Hacker News Reader

NJ Supreme Court: No 5th Amendment right not to unlock your phone

arstechnica.com

54 pointselliekelly85 comments

It seems there is no clear consensus on whether, and in what circumstances, the fifth amendment applies to phone passcodes:

> Earlier this year, a Philadelphia man was released from jail after four years of being held in contempt in connection with a child-pornography case. A federal appeals court rejected his argument that the Fifth Amendment gave him the right to refuse to unlock hard drives found in his possession. A Vermont federal court reached the same conclusion in 2009—as did a Colorado federal court in 2012, a Virginia state court in 2014, and the Massachusetts Supreme Judicial Court in 2014. But other courts in Florida, Wisconsin, and Pennsylvania have reached the opposite conclusion, holding that forcing people to provide computer or smartphone passwords would violate the Fifth Amendment.

This is going to have to be decided in US Supreme Court and I hope it happens sooner rather than later.

That is the opposite of the Supreme Court's approach. They want this to be argued over and the facts laid out as much as possible so the issue is clear, and the conflicting approaches demonstrated (and range of cases that fall into the ambiguity zone), before they step in.

The core argument here sounds surprisingly reasonable: that the Hubbell case was a 5th amendment violation because the defendant was asked to make a judgement call about which documents to produce, and that a fishing expedition would be a 4th amendment case.

Now it is just a matter of time before Apple and other manufactures will implement a 'fake PIN' just like Truecrypt/Veracrypt backup password feature: A void unused phone profile with a separate data store. Looks legit, but keeps the actual interesting data locked away.

We can't even get normal multiple profiles, much less one that's a honey pot.

That’s illegal too. If the police find out you provided them fake data, that’s the crime of lying to police.

Then it is up to the implementation to make it look legit.

Of course the whole thing will generate a lot of debate (and has been covered many times before), but I point out a situation that could be regarded as similar:

A court can compel you to give blood (or have blood taken from you) if you're suspected of drunk driving. That is not incriminating testimony, but the result may incriminate you.

I can see the logic being similar here. Fingerprint, passcode -- courts and law enforcement are clearly testing the limits of where the boundary is.

But a passcode exists only in your mind and you have the right to remain silent.

And what if it isn’t your phone but you’ve been compelled to unlock it and you genuinely don’t know the passcode? I don’t think the blood withdrawal is an apt analogy for a password though I do think it makes sense when discussing compelling a fingerprint scan.

> For example, if the government doesn't already know who owns a phone, then forcing a defendant to unlock it amounts to forced testimony that the defendant is the owner.

It seems that the government has to atleast prove it is your phone.

The government has “proven” a lot of facts in court which later turned out to be false. It’s not a perfect system.

> But a passcode exists only in your mind and you have the right to remain silent

There isn't actually a "right to remain silent" per se in US law. The various right to silence all have limitations.

For example, suppose a smuggler shoots and kills a bounty hunter in a cantina. The bartender tells investigators you were there and are the only person who had a clear view of what happened. Investigators want you to tell them what you saw.

However, you are on parole and being in a cantina violates your terms of parole. If you testify about the shooting that is tantamount to admitting to a parole violation, and it is back to prison for you so you try to invoke your Fifth Amendment right against self-incrimination.

Prosecutors then grant you immunity for any parole violations that occurred while you were at the cantina. Your testimony is no longer be self-incriminating, and can now be compelled.

1. Tatooine is extra jurisdictional territory for 5A. 2. I witnessed it. Han shot first.

"Testimony" can be interpreted as the physical act of speaking, giving testimony against oneself under questioning.

How would being compelled to enter a passcode into a phone be considered speech?

“Remain silent” is actually a bit of an oversimplification. We have a right not to incriminate ourselves. If you’ve murdered someone and hidden the murder weapon the government cannot compel you to tell them where you’ve hidden it. That information exists only in your mind and you can’t be forced to incriminate yourself. And they can’t say “okay, remain silent but you must drive us to the location of the murder weapon and point it out” so it’s not about “speech” so much as it is about your right not to assist the government in their prosecution of your own crimes.

Now that’s not to say that the location of the murder weapon or the contents of your phone are somehow protected. If the government happens upon the information another way they can use it against you. Even if the way they happen upon it is your own words. If you keep a diary and write “hid murder weapon here” the government can seize your journal as evidence and then use information from your journal to go find more evidence against you. But you don’t have to help them find the information that can be used against you.

Eg what if the phone isn't encrypted but just random bits. What do you do when you are compelled to unlock it?

In PA where I am they can't force you to give blood. If you refuse you automatically lose your license for a year. And because driving is a privilege, not a right, they are able to compel you with the threat but not force you to comply.

I'm not sure how this varies state to state but here the state can't force you to give up your fifth amendment rights, only make life difficult for you if you don't agree to the blood testing.

That's the difference between something you have (name, fingerprint, blood, key, device) and something you know (password, pass-phrase, unlock code).

Fingerprint is already treated the same way-no 5A protection.

This is why if you click the power button five times, or hold it down for five seconds, it will display the poweroff slider and no longer accept biometric unlock. The pin is now required. Same on boot.

A counter argument is that personal computing is an extension of the human mind, and therefore data secured on personal computing devices should be subject to the usual 5th amendment protection against self incrimination.

I don't foresee courts being sympathetic to this argument any time soon, so it is up to us to design technical solutions that protect this right.

It'd be nice if there was a form of encryption where a user could provide a secondary password plus a unique hash associated with a file to check if that file is present without opening up access to everything.

This is a really neat idea

Is it, could easily be used by authoritarian states to check on if any of their citizens have forbidden literature on their computers...

Provided the person gives up their password. The same applies to any encryption.

Or if you could set a “self-destruct” or “wipe disk” passcode. We toyed with a similar idea for ATM cards in Massachusetts after a woman in Boston was abducted, forced to withdraw money from her bank account and then brutally murdered.

The idea being that you’d have a PIN and an optional “911 PIN” that would work exactly the same but alert authorities. The PIN would grant you access to accounts and give you money, etc. so anyone holding a gun to your head would be clueless but by entering the 911 PIN authorities would know you were in need of immediate assistance.

It was ultimately scrapped because the regulator backed off of requiring additional ATM security once the news stopped covering the murder. But the same concept could be applied to unwanted cellphone intrusions.

There is a setting on iOS to wipe the device automatically after 10 failed passcode attempts.

I think that covid has pretty well killed the idea that the constitution is relevant in any situation the government feels strongly about.

COVID just demonstrates there's a "we thought y'all would be sensible" hole in the Founders' thought processes. Quarantines have been an accepted thing for millennia - George Washington himself instituted a smallpox one (and a innoculation campaign!) - and the quarantines have all been state-level thus far which the Tenth Amendment offers quite a bit of wiggle room for.

https://www.nationalgeographic.com/history/2020/04/george-wa...

Business licenses, state-run liquor stores, handwashing requirements at restaurants, mandatory vaccination to go to school, even masks being required in surgery have all been fine constitutionally.

And there doesn't seem to be any difference between the restrictions now vs what we saw in 1918.

A newspaper editor was arrested for under the Sedition Act for accusing Washington of incompetence. The whole "what the Founders thought about the Constitution" thing has always been a bit of a stretch.

It was Adams, not Washington, and the Sedition Act was repealed after Jefferson became president:

United States v. Thomas Cooper https://www.archives.gov/education/lessons/sedition-case

Different newspaper editor. That was the Thomas Cooper case. Benjamin Franklin Bache was also a newspaper editor who was arrested for seditiously slandering president Washington (and also Adams).

> Benjamin Franklin Bache was also a newspaper editor who was arrested for seditiously slandering president Washington (and also Adams).

Bache certainly antagonized Washington, but he was arrested in June 1798 for criticizing Adams:

When Benjamin Franklin’s Grandson was Jailed for Criticizing President Adams https://firstamendmentwatch.org/when-benjamin-franklins-gran...

Benjamin Franklin Bache https://www.mountvernon.org/library/digitalhistory/digital-e...

Last night I literally reached the midpoint of a biography on Dr. Benjamin Rush by Fried and after reading all the trouble the doctor took to educate Washington and the Continental Congress (and even fellow physicians) and advocate vociferously time and time again for smallpox inoculation and various other public health changes, I feel a bit of angst about making sure people know Dr. Rush should receive the credit!

I hadn't considered it this way, but you are correct in that the COVID-19 crisis has been putting a lot of stress on the limits of government in the constitution. It also seems clear that federalism and individual liberty are at odds with the effective fighting of highly contagious diseases in a coordinated fashion. I do not want to give the government power because they have a track record of abuse, but how does a society fight something communicable like this?

Not to be overly dramatic, but the US has been on a recent "You die for My freedom," kick.

Even Hayek said epidemics were an obvious exception to most of his economic ideology and called for government planning: https://twitter.com/nntaleb/status/1274130684337172481

Mostly we just have had anti-biotics, effective vaccines, etc. for everything deadly and have basically forgotten how to govern in the face of the massive externalities presented by communicable diseases. Whether someone thinks covid is severe enough to justify which particular actions is one thing, but if we had something like an incurable smallpox or measles going around there would be a lot more consensus on government action.

Would we? I am not convinced the amount of idiocy would be low enough to prevent problems. Most of the arguments I have seen have been "this is a hoax" type or other arguments not based in reality. I agree there is an arugement to be made over whether or not to close based on death rates and whatnot, but I do not hear those arguments that much.

The people screaming that it is a hoax and its their freedom I generally assume would react similarly to a even more severe crisis. Maybe I am over estimating their numbers based on the fact that they are loud, but assuming they will realize it is really serious in the cases you describe is a leap I am not willing to make.

There would be many more people with personal experience of death of loved ones young and old and I think that would mean less deniers.

> "...but if we had something like an incurable smallpox or measles going around there would be a lot more consensus..."

so, working as designed. our government was never designed to be highly mobilizable, except in the face of extraordinary threat (because then it would be too easy to mobilize for "evil").

while covid may seem to be a massive existential threat to those of us who've never faced anything more dangerous than the flu, it's a minor blip relative to the rest of human history. covid is serious but not extraordinary, which is why there isn't extraordinary concensus (and why everyone thinks it's handled all wrong).

It would have been so cheap to handle early with more strict policies.

that's hindsight bias at best. strict policies are not cheap by any measure.

the best we could have done cheaply was distancing (and self-quarantining when sick), and drilling that singular message everywhere and all the time. instead, we got lost in the weeds of what-ifs, symptoms, masks, death counts, lockdowns, etc.

It's been obvious from observation, no hindsight needed, since S Korea's outbreak and handling. And again once you had Italy to compare.

> how does a society fight something communicable like this?

Probably like all the other societies around the world who have fought it: have a citizenry that generally accepts collective action for the public good.

South Korea, New Zealand, Japan, many others - all the countries with the best response have a relatively high percentage of their populace who are willing to accept restrictions and "do their part" for their fellow citizens.

This requires, among other things:

- high trust in government

- low levels of misinformation

- robust education system that teaches the populace to think both critically and empathetically

Unfortunately, the USA has none of these. Distrust in government is at all-time highs, misinformation is at an all-time high (frequently to specifically cause distrust in government), misinformation is also funded with multi-million dollar campaigns. And in 2020 we still have problems deciding on how much science to include in our school curriculum.

I think some of these problems are particular to the USA because of our status as a global superpower (reserve currency, global military presence, etc), so there are many tier-2 nations with a strong interest in taking a piece out of the USA specifically, to make space on the global stage for themselves (Russia, Iran, China over the last decade, etc). This leads to well-funded and state-sponsored disinformation campaigns and meddling arriving at our shores. I would include all the industry-related misinformation and meddling from mega-corps here too, as many are rich & powerful as some small nations at this point.

These actions, combined with the political brinksmanship from both major parties (though the red side seems to have a stronger grasp on the major media outlets in terms of total viewership, so I place more blame at their feet), and further combined with our cultural history+tendency to individualism and the "rugged rebel" archetype, has created the current "COVID is a hoax, masks are tyranny" crowd.

These are the reasons why collective action, while not impossible, is extremely unlikely to succeed in the USA at present. I have no idea how to even begin fixing these problems, other than reversing Citizen's United and trying to reduce the amount of money in politics, which even then would be a decades-long process that takes further decades to produce measurable results. Even if we started now we MIGHT see positive change by the end of the century.

This isn't the first epidemic to hit the US. Besides the well known 1918 flu, the US has had numerous cholera, typhus, yellow fever, bubonic plague and probably other epidemics in the 19th and early 20th centuries.

The state and Federal governments aren't really exercising any powers or imposing any restrictions on individual liberties that weren't used in past epidemics.

The NIH and CDC have been around for quite some time. We're only seeing so much federalism because the federal government has refused to act on this topic. We've ended up with the worst of both worlds - the federal government is consuming a massive amount of our resources (income tax and money printing tax), while doing little or even actually undermining the states' responses.

Why?

The constitution gives broad powers to regulate commerce and you don’t really see any of the stay at home or mask orders actually being enforced outside commercial regulation.

When I read the local orders they don’t really have teeth, or are written in a way that it is impossible to actually violate them, outside commercial regulation.

I don't see how this assertion is relevant to the topic at hand here -- but how do you think the government has violated the constitution pertaining to covid?

There are certainly a lot of people coming out of the woodwork who are under the misconceptions that "the constitution" prevents the government from requiring their citizens do anything, but I haven't heard any specific claims about violations, let alone a citation of relevant case law.

Public health regulations, especially at the state level, are well within the powers legal under the constitution.

Trump’s executive order for the latest stimulus. The stimulus programs are clearly legislative, and as such are constitutionally the duty of congress. He even watched congress debate and negotiate a stimulus package, didn’t like their result, and with an unconstitutional EO, spent a trillion dollars.

The choices to disallow religions institutions from congregating while allowing BLM protests seems like it’s a ploy to suppress religion and not an effort to protect people as well.

The BLM protests are all outdoors and have not been shown to be superspreader events. Church services held indoors have been shown many times to be superspreader events. Your argument that any government anywhere in the US tried to use the pandemic to suppress religion is not supported by the evidence.

https://www.click2houston.com/health/2020/05/29/what-are-cov...

https://www.businessinsider.com/church-oregon-largest-corona...

https://www.news4jax.com/i-team/2020/08/04/jacksonville-chur...

https://www.cnn.com/2020/08/05/health/ohio-church-coronaviru...

It takes a very partisan mind, IMO, to not see that yelling in dense outdoor crowds is nearly as dangerous as singing in a large building with 50 foot ceilings.

Even if we find out that being in a church has zero risk, asking a church to follow building occupancy regulations is still constitutional.

Building codes are precautionary, and they apply to buildings, which are in no way related or predicated on any regulations that apply to standing in the middle of a street.

Constitutionality aside, I don't think the current scientific consensus supports your opinion about risk either. Buildings recirculate their air, 50ft ceiling or not.

Yes people bunched up and sweating all over each other and yelling is not a superspreader event.

This reminds me of the same braindead talking points people would trot out about masks not working because the "experts" said so. Now the same people are mindlessly saying that masks are a panacea and should be mandatory in all environments regardless of the context.

https://www.bloomberg.com/news/articles/2020-02-06/want-to-a...

> Yes people bunched up and sweating all over each other and yelling is not a superspreader event.

Is there evidence that it is you can actually provide?

Even if it is, you misunderstand the reason for the difference in regulation.

Occupancy rules set by local authorities apply to buildings. A church has one, and a protest in the street does not. There are many churches which have worked around the regulations by doing the same -- worshiping outside.

> Yes people bunched up and sweating all over each other and yelling is not a superspreader event.

This is a very testable claim.

NYC had sustained, massive BLM protests in May/June. Where's the resulting spike in cases?

Here's Minnesota, home of the BLM protests:

Second wave begins within 14 days of the protests and rioting. Remember that there's an incubation period.

https://www.health.state.mn.us/diseases/coronavirus/situatio...

> Second wave begins within 14 days of the protests and rioting.

Sure, and Memorial Day. MN didn't require masking until late July.

(They also reopened bars on June 1: https://www.minnpost.com/state-government/2020/05/what-to-kn...)

Again, why no spike in NYC?

There's actually evidence that the protests caused more social distancing in areas where they occurred:

https://www.economist.com/graphic-detail/2020/06/30/black-li...

Right if you're going to bring up Memorial Day then your question was asked in bad faith since you would always assert that as an alternative explanation.

To live in NYC is to live in extremely close contact with other people on a daily basis (I know since I have lived there) and the virus had already been spreading there since January so I wouldn't expect much of a difference. I wouldn't be surprised if 80%+ of NYC had been exposed by the time the lockdowns started, especially the demographic that was out protesting. Just common sense and a basic knowledge of epidemiology.

> Right if you're going to bring up Memorial Day then your question was asked in bad faith since you would always assert that as an alternative explanation.

Ignoring Memorial Day and bars opening would be in bad faith.

We're able to look at different areas and compare them. Thus far, the evidence indicates the protests did not result in superspreading events. https://www.npr.org/sections/coronavirus-live-updates/2020/0...

> "We did have a rally in Bellingham, which is our county seat, and there was also a protest, and we have not been able to connect a single case to that rally or to the protest, and what we're finding is in large part that's due to the use of masks," Erika Lautenbach, the director of the Whatcom County Health Department in Washington State, tells NPR's All Things Considered. "Almost everyone at the rally was wearing a mask, and it's really a testament to how effective masks are in preventing the spread of this disease."

> For the clusters that have popped up, Lautenbach says the state has been using contact tracing to learn more about how they're contributing to the spread of the virus. For instance, it found that 14 cases were associated with a party of 100 to 150 people in early June. Subsequently, 15 more cases were associated with the original 14.

"Just common sense and a basic knowledge of epidemiology."

It's weird how the epidemiologists don't seem to agree with you, in that case.

Again, one would have to be braindead or ideologically possessed to not think that people being in close proximity to each other would not spread a highly infectious respiratory illness.

https://slate.com/technology/2020/06/protests-coronavirus-pa...

Here are some examples of public health "experts" that are ideologically possessed. These are the people that you're citing. Hopefully one day you gain the courage to think for yourself.

We're gathering abundant evidence by now that outdoor gatherings aren't a source of infection - whether they're protests (the anti-mask protesters didn't incur spikes, either) or beach days.

We've got lots of evidence bars are problematic, and MN opened theirs right around the same time the protests were getting going.

There’s other states, many in the east coast. None having much of a spike. Your nyc explanation doesn’t work the rest of the east coast except Philly, DC, Boston.

> with an unconstitutional EO, spent a trillion dollars.

Do you have a link? I read about the payroll tax deferral, but haven't heard about this.

>The choices to disallow religions institutions from congregating while allowing BLM protests seems like it’s a ploy to suppress religion and not an effort to protect people as well.

1. Actions are not deemed constitutional or unconstitutional in comparison to other actions - they are each compared individually to the requirements outlined in law. Protests and religion have different relevant bodies of case law, and therefore the constitutionality of a limit on each would not be directly comparable.

2. The physical structures that religious institutions build and operate already have to follow other limitations imposed by health and safety laws, this one was no different. An outdoor protest owns no property which would be subject to such regulations in the first place.

State government public health orders might have violated the 1st ("right of the people peaceably to assemble") and 14th ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States") Amendments. Federal courts have allowed temporary restrictions on the right of assembly in limited circumstances before but the facts were different in those cases. It will be interesting to see how the courts deal with legal challenges to current pandemic control measures.

The government doesn't feel strongly about anything, largely due to inconsistent leadership in the current executive branch and legislative branch.

It's moreso that constitutional jurisprudence is more contextual to civic emergency than most people appreciate.

If that was true, we would've had a totalitarian-style lock down back in late Feb or early March. That didn't happen, obviously. Instead, the lack of a decisive, coordinated response, and "we'll leave it to the states...." is what caused all of this to get much, much worse.

Wickard vs Filburn did that long ago. My own judgement is that every single amendment in the Bill of Rights has been effectively nullified, justified by the courts.

But still, I don't see how emergency public health orders go against the Constitution.

> New Jersey's Supreme Court has ruled that compelling a suspect to unlock his or her cell phone doesn't violate the Fifth Amendment.

For those who couldn't be bothered to think through the triple negations in the title.

Is there anything for android that resets phone under a specified duration if not unlocked or used?

Do you still have the right to remain silent?

No, it will probably count as contempt.

AFAIK You have a right to remain silent during your arrest and before you face a judge.

If court orders you to do something (legal ofc) you will have to do it, if they ask you a question - you will have to answer it. Except something that would incriminate you or your immediate relatives.

Of course the unexplored downside of this ruling is that the punishment for forgetting your passcode (password etc) is now life in prison...

I think a court would reason that if a phone is being used hour by hour, it's not likely that a person would "forget" that passcode suddenly, and there is a more simple explanation of what's happening.

Eh. I have forgotten important passwords and lost accounts that I had used for years the next day. It absolutely happens.

I have too. It's very rare but really disconcerting when it does happen. Human memory is pretty faulty.

I have too. Staring at my keyboard in complete disbelief that a password I used hours before had fallen out of my head. Still amazes me that I can forget things so easily

I've done this multiple times with SSH key passphrases. Used them for months until it becomes muscle memory. And then one day just can't it at all...

Kind of what I was thinking-even if you don’t forget, how do you force someone to unlock, and what is possibly a fair punishment? Sounds crazy ruling to me.

> life in prison

You are right. A court that believes you can be compelled to reveal your password will likely hold you in contempt of court for refusing to do so.

And, yes, life in prison is indeed a possible repercussion of a "contempt" judgement. Just ask H. Beatty Chadwick who was forced to spent 14 years in prison (for "civil contempt of court") because the court asked him to cough up $2.5 million that he did not have: https://en.wikipedia.org/wiki/H._Beatty_Chadwick

While life in prison remains theoretically possible, your link makes it seem that it will most likely never happen:

> On July 10, 2009, Chadwick was ordered released from prison by Delaware County Judge Joseph Cronin, who determined his continued incarceration had lost its coercive effect and would not result in him surrendering the money.

14 years is pretty crazy, but all-time records are usually extreme.

Interesting. Under my state's statutes [NCGS 5A-21(b2)], all civil commitments are limited to a maximum total length of 12 months, and must be renewed at least every 90 days.

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