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Comment by greatgib | Hacker News Reader

To be noted, there is a subtile nuance with the meaning of this ruling.

It does not really says that "it is a crime" but that "it might be a crime under certain Circumstances".

In the current case it is like there is a password, it is known, it is needed to unlock a phone, not encrypted data itself. And the guy is plainly refusing to give it. This is the case that was judged.

But hundreds of variations of this still might or might not be a crime in a future case.

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>In the current case it is like there is a password, it is known, it is needed to unlock a phone, not encrypted data itself.

I'm not seeing the distinction here. Don't all modern phones have encryption enabled by default, and the encryption keys are partly derived from the passcode?

They do mention that explicitly. But that further confuse me then.

The circumstances seems to be “we Know you conducted illegal trade on that phone” ?

I'm not sure on the technical ruling details, but it looks like something like that: They did not care about the data, officially. As they have already recording, sms, ... They just wanted to access the home of his phone that his restricted by the passcode. And he explicitly refused. Nothing say that once they would accessed, they would have been allowed to access private data or being able to use any of that in the trial. It is like a 2 steps process. First they should be granted access, then there is the question of incriminating data that could encrypted or not.

It looks dubious, but it is how it is presented to be able to get such a ruling.

As an equivalent, imagine that cops ask you to unlock the steal bar reinforced door of your entrance because they have a warrant and you refuse. And you claim that their might be naked pictures of you inside of your home this is why you refuse.

what if it’s a phone you haven’t used for 3 years and forgot the password.

This is all the point why I said that the ruling doesn't say what would have been the decision in another case.

Here it looks like that he was not denying knowing it

In Saunders v United Kingdom the ECHR said that the right to not self-incriminate "does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect".

Even if the evidence is not properly encrypted, in which case you could argue the data is indistinguishable from randomness and does not exist unless it's decrypted, a password would likely fall under a similar category.

If I understand correctly Saunders vs UK, if you killed someone and hide the body you have to show the body when you are asked to, even if you are just suspected and not confessed. The phone and the body is the parallel here, they suspect there is something in the phone so you have to produce proof of guilt - that is exactly self-incrimination.

I think it’s too subtle to be a practical difference: the circumstances are wether it’s _suspected_ to be related to a crime. That’s a low enough bar to be almost non-existent.

https://www.legifrance.gouv.fr/loda/article_lc/LEGIARTI00003...

Then you get additional fines if your refusal can be seen as preventing current crime from being dealt with, or helping further crimes. Which also comes down to perception.

All in all this law is extremely police friendly.

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