I would like to think not, as usually you cannot be made to compell against yourself. The famous right to silence.
https://en.wikipedia.org/wiki/Right_to_silence
Which was the base of this court case (and I think it is troublesome, that it had to be debated at all)
"One of the major issues in the law of digital evidence investigations is how the Fifth Amendment privilege against self-incrimination applies to unlocking phones"
It turns out there is but it's not enumerated in the first amendment, so it's called an "implied right." It's been derived by the courts (including the Supreme Court) as logically inferred by the rights which are enumerated in the 1st amendment. What I found interesting is the boundaries of this implied right to silence are currently less well-defined than than the other 1st and 5th amendment rights. Apparently, some cases the court will be deciding this year may involve further fleshing out these fuzzy edges. I'm not an expert but as I recall, the scenarios may include things like whether social media networks can be compelled by a legislative statute to disclose (ie 'speak') their content moderation policies and whether public universities can enforce codes of conduct which may compel speech.
Personally, I'm all-in on the vital necessity of robustly expansive free speech rights, so I'm also all-in on robust freedom of silence rights. I used to think I understood the limits of free speech in the U.S. but reading this article by 1st amendment expert Ken White on free speech tropes surprised me. Highly recommended: https://www.theatlantic.com/ideas/archive/2019/08/free-speec...
https://www.scotusblog.com/case-files/cases/salinas-v-texas/
In the US, case law has ended up more protective of people who invoke their right to an attorney than those who merely invoke their right to remain silent.
In certain cases the police can restart interrogations after invocation of a right to remain silent, but if you invoke the right to an attorney any interrogation must stop until your counsel is present. These exceptions are narrow, but “being interrogated by the police” is the last place to chance stumbling into one.
The magic words are: “I will not answer any questions without a lawyer present.”
I’m not interested in lying to the police, but when I know that they can lie to me, it’s a big disincentive to say anything to them at all. This is a problem.
> "you are not legally allowed to lie to the police."
I know that lying under oath in a court is perjury and in certain contexts some investigative agencies like the FBI can put you under oath and in that specific case materially false statements can be actionable. And I know that filing a false police report is against the law but I think that usually requires signing the report and it spells out that lying on the statement is perjury.
But, in the scenario of a police officer just walking up and asking you questions on a street corner, prior to arresting or detaining you, is anything you say about anything which is later deemed to be false or misleading cause for arrest? Maybe it is but I'm trying think of what law it would be violating. I do know that civil libertarians say that if a police officer talks to you, you can ask "Am I being detained?" and if they don't answer "Yes" you are free to just walk away.
My naive prior understanding is that things are more complicated and conditional than simply "Lying to a cop anytime, anywhere is always grounds for arrest and prosecution (even absent any other grounds for arrest)" but perhaps I was misinformed on this.
State laws about lying to police vary by state. Ask your lawyer.
https://www.popehat.com/2009/09/22/today-in-shut-up-moron-te...
Note that the "lawful duties" portion is apocryphal.
It’s shameful though how many false police reports are not prosecuted because they fall in line with the perceived powers of police forces.
I'm curious. How do people get a lawyer, if they aren't exactly prepared for being questioned, but just somehow unexpectedly found themselves in some weird situation?
Somehow, I doubt most common folks already have an established lawyer (especially not knowing what sort of situation they may get into - as I get it, different lawyers specialize on different matters) and remember their phone number (OP reminds me that one probably doesn't want to unlock any phone). Or I'm wrong? What's the general approach here?
Otherwise, you’ll be arrested and taken to jail for processing. Your bail will almost always be predetermined by a bail schedule. For minor crimes you can post bail to the jail and leave within hours. Some jails even take credit cards. Search for a lawyer on your own after you are out.
Otherwise the rules are varied across jurisdictions. “You get one call” is a TV trope” - but you can use any phone calls you are granted to secure an attorney. The state bar, as mentioned, will refer you. Call your family and have them secure one. Some jails have the yellow pages for your own selection. If you have a non-criminal attorney (a will, employment law, etc.) they can give you a referral.
https://slate.com/news-and-politics/2017/10/suspect-asks-for...
And or course on a recorded interview/questioning, right? Because if there was no recording then it’s my word against police’s, right?
(I am not from US).
Upon arrest, you're not obligated to speak or answer anything.
The police are not officers of the court, nor involved in court proceedings during their interactions with the public, so there is no expectation or explicit penalty for not answering. In court, while being questioned, you're compelled, under penalty of perjury, to testify in full and truthfully unless there is a reason you can or may not:
> Do you solemnly (swear/affirm) that you will tell the truth, the whole truth, and nothing but the truth?
The 4th (unreasonable search and seizure) is generally clearer, but I don’t know how it works online “stop and ID” states. IMO those laws are unconstitutional, but I haven’t looked into it because I don’t live in one.
To be clear, not if you're the defendant.
Yes, it means explicitly saying “I invoke my 5th amendment right.” Generally, if you’re being interviewed, this is surprisingly less of an issue, because you’ve already been read your rights, and the interview will be recorded (theoretically, they can disappear sometimes).
This applies to situations BEFORE an arrest, but you may have already been detained. (The 4th amendment and court precedent has more to say about this, but it’s an aside if you aren’t subject to it.)
If it’s your word against the police, with no recording or some other overwhelming evidence, you will lose in a US court. Police body cams help a lot here, but it’s still best to record every police interaction yourself. It’s an unfortunate situation.
Nope. You need to express your desire to stay silent early in the "arrest or questioning" process with the police. I'm not an expert, so I don't want to pretend when your words can be used against you, but if a cop hears you say something, they can quote you in court.
Also, here is a fun twist. Your words can be used against you in court, but not for you. For instance: if the cop writes down a bunch of stuff you said while being arrested, and your defense lawyer wants to look at it -they are not allowed to see it-. They can only see the stuff the cops use to charge you
This is incorrect.
Withholding exculpatory evidence can get cops & prosecution into a lot of hot water.
This is called the Brady or Brady/Giglio rule.
Brady v. Maryland (373 U.S. 83 (1963)
Giglio v. United States (405 U.S. 150 (1972)
> It cannot help you. You can't talk your way out of getting arrested, and contrary to what you might suppose if you never studied the Rules of Evidence, what you tell the police - even if it's exculpatory - cannot be used to help you at trial, because it's what we call hearsay. Under the rules of evidence - specifically Rule 801(d)(2)(A), if you want to look it up - everything you tell the police, as the saying goes, can and will be used against you but it cannot be used for you.
Professor James Duane, the speaker, refers to Federal Rules of Evidence Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay [1]. My layperson understanding of 801(c) and 801(d)(2)(A) is: if you are the defendant, what you told the police prior to a trial is not hearsay when during the trial the prosecution (of their own volition) tells the court your words as evidence but is hearsay when during the trial you ask the prosecution to tell the court your words as evidence.
You have a First Amendment right to record the police, whether you're involved in a police interaction or you're a bystander [2]. If the police make you stop recording, try to make you delete the recording, or try to forcefully stop/delete/damage the recording/device, you sue them after the interaction is completely over. But regardless, beyond pleading the 5th Amendment, do not talk to the police at all, especially but not exclusively outside of a trial. You talk to your defense attorney, and your attorney handles the talking with everyone else. You can ask your attorney to admit your recording as evidence.
[1] https://www.law.cornell.edu/rules/fre/rule_801
[2] https://www.eff.org/deeplinks/2020/06/you-have-first-amendme...
Extra notes for personal reference. The first speaker in the "Don't Talk to the Police" video is Professor James Joseph Duane of the Regent University School of Law [E1]. The second speaker is Officer George Bruch of the Virginia Beach Police Department (time 26:51 of the video [E2]).
Where would such a precedent leave things in terms of codes of conduct and open source?
The idea that code of conduct can’t exist is nonsense. The idea that it violates free speech is also nonsense, as it has been well settled that you don’t have free speech on private land.
I'll admit, the internet is everywhere, so every asshole is on the internet. I just remember before the Code of Conduct, there was definitely one less potential layer of assholes above, despite an ever present layer of assholes below, and there seemed to be more crazy and less conformist people.
Would write more but I need to go yell at a cloud.
Public universities are part of the (state) government, so are bound by the first amendment.
Open source projects are not part of the government, so their freedom to associate with whoever they choose (with some limitations implied by eg the 14th amendment, but nothing likely to affect currently prominent codes of conduct) is protected by the 1st amendment.
In this context, "Public University" means an institution substantially run by or funded by the U.S. government. Only some universities are public and many others are private. And different rules apply because the government is held to constitutional standards.
Conversely, "Public Domain" relates to the copyright status of a creative work and is entirely unrelated to how something is funded.
Legally, a "Code of Conduct" is basically just a contract. In the U.S. the "Freedom of Contract" and "Freedom of Association" between consenting adults are, thankfully, pretty damn expansive. If you want to create a non-government owned, run or funded project, club, cabal or coven which involves a contractual obligation requiring Taylor Swift tattoos and apple cider enemas, I'm pretty sure consenting adults can voluntarily agree to that if they chose to (although it should be noted, enforcement of such a contract will likely be limited to rejecting or expelling non-complying members).
If I sign a contract saying I'll take an apple cider enema and I don't, that doesn't automatically mean I've given permission to have one administered! That might mean I get kicked out of the contract but it doesn't mean that I can be forced to abide by the contract.
Separately, although I am not a lawyer, I have decades of business experience which often involved working closely with lawyers and my circle of friends happens to include several attorneys, prosecutors and judges, so I'd say I have an unusually broad understanding of legal matters for a non-lawyer (especially contract, IP and business law). I also just find legal stuff interesting to learn about and I'm one of those oddballs who looks forward to June because I find well-written SCOTUS rulings (and dissents!) fun to read.
Yet, I'm still surprised at the lack of even high-school civics-level knowledge of basic legal principles I come across in otherwise intelligent, well-educated professionals including doctors, MBAs, engineers, etc. It's kind of sad because the latent engineer in me finds the system architecture of the U.S. legal framework to be fascinating. Yes, it's imperfect in many ways, yet it's still a brilliant, iterative, collection of attempts to solve a 'wicked' bundle of thorny problems through successive approximation. Despite its flaws it still ends up eventually getting things pretty close to as "right" as they probably can be with remarkable frequency.
No, a public university is run by one of the 50 states.
Pedantically, I believe there are federal universities such as the army, navy and air force academies. There are also city colleges and all of these "government institutions" are funded or controlled by federal, state and/or city taxes which causes them to fall under additional constitutional restrictions.
Although it appears the matter has now been settled as of this ruling.
It seems like with a warrant they can be allowed to crack into your safe, and you may prefer to let them use the key so that you still have a working safe at the end of it.
The UK has a rather scary law where even if you do genuinely lose it they just assume you are lying.
The extension of that is you can just always say "I don't know". So the right to remain silent is basically a shortcut to avoid this issue.
> ruling issued today by Utah's state Supreme Court
It would take a US Supreme Court ruling. Apparently a few states have ruled in different directions in different circumstances.
It's settled in Utah at least.
https://en.wikipedia.org/wiki/Book_cipher
for example: Article I, Section 9, Clause 2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
However I believe the court could eventually order you to produce the Rosetta Stone, after various proceedings. At that point you have to decide whether you want to comply with the order or not, and not doing so would likely have negative consequences like being held in contempt.
A 22-year-old man has been jailed for six months after refusing to provide passwords to his encrypted hard-drives, the Daily Mail reported. He was imprisoned under a section of RIPA, a UK law that was originally pushed as a counter-terrorism measure, but which has now ballooned to cover many different aspects of crime—something that has got civil liberties groups worried.
Christopher Wilson is suspected of attempting to break into a law enforcement website and “trolling” the Newcastle Police by fooling them with a prank phone call. However, these are not what he is going to prison for: he's spending time behind bars for not giving up his passwords.
It would have been helpful if the Ars journalist had scored an interview with his expert source — Berkeley academic Orin Kerr — rather than simply re-reporting Kerr’s own analysis:
https://reason.com/volokh/2023/12/14/is-compelled-decryption...
The reason it's not a been a big deal is courts is because, if police have a warrant, they're going to hire their go-to safe driller to drill the safe open.
But it’s quite complex, see https://scholarship.law.edu/cgi/viewcontent.cgi?referer=&htt...
For example, when I add an account on my mac - not related to apple in any way - the computer will send information back to apple. Every time. I have cloud stuff turned off.
As far as my phone - most of this stuff is not only hidden, but apple doesn't let me run software to know who it is talking to, and what is being sent.
This one seems pretty cut and dry, frankly, since they’ve asked him to provide the code, and he refused. It sounds like the prosecution erred significantly in making closing arguments about pleading the fifth being indicative of guilty. The more interesting question, which is not involved in this case, is whether a defendant can be compelled to provide unlocked devices to law enforcement.
Then is it the other legal team’s responsibility to point out that it’s bogus and refute the claim that it meant “I stole Jack’s peanuts”. Maybe by giving examples of other assumed ciphers that prove it actually decoded to “I can drink 5 beer cans in 2.5 minutes” or that it also means “Rabbits are actually slow” according to yet another assumed cipher?
How does that work? I mean I know if it’s a jury and then it can just come down to their individual and collective whims and fancy and but how does it work in general?
In the past, pre-computer days, if the cops couldn't break your encryption you were not compelled to tell them how and that was their problem.
Now you are compelled. I feel that that should not have changed.