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Comment by tptacek | Hacker News Reader

Footnote 30, on Page 13, is very very important to understanding the limitations of this ruling; the ruling concerns inventory searches and not the more common searches incident to arrest. If you are arrested, in most locales in the US, it is very likely that evidence taken from your phone at the time of your arrest will stand up in court. Keep your phones secure.

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Unfortunately true. When I saw the headline, I was hopeful this was going to be about "incident" searches, and not merely "inventory" searches.

I still don't understand how the reasoning behind "incident" searches, which I'd understood to be primarily about the safety of the arresting officers, would apply to the contents of a mobile device, but that's modern criminal justice for you...

Incident searches are not about the safety of officers (this has come up on HN before). If you follow the cites and the doctrines, it turns out that incident searches have always been about collecting and preserving evidence as much as safety. I think incident searches get confused with Terry stops, which are solely meant to be about officer safety.

The unique issue at play in incident phone searches is the notion that a phone is a little like your house; that if you're arrested during (say) a traffic stop, the police don't have the authority to drive to your house and search it too. Similarly, if you're arrested at a traffic stop, getting access to your trunk can be legally iffy too; incident searches are restricted to your immediate vicinity.

This is something SCOTUS is going to resolve next year.

If only there were dogs that could "smell" illegal or incriminating documents on cellphones...

Startup idea? I just need a co-founder who can make some fancy certificates, and we could be in business 'training dogs and issuing 'credentials'!

Keep your phones secure

Ok, so I get arrested and my phone is taken. Lucky for me my phone is encrypted and I was able to shut it off before it left my possession. So I've made it more difficult for the phone to be searched on the spot, but what is preventing the authorities from compelling me to decrypt the phone eventually?

The 5th amendment?

I'm not sure why you are being downvoted for this, unless you are being interpreted as snarky (whereas I interpret you as offering a noncommittal answer).

While it has not been settled in court yet, IIRC, the 5th amendment right against self-incrimination is the legal rationale used to argue against forced decryption [1].

[1] https://www.eff.org/deeplinks/2013/10/new-eff-amicus-brief-a...

I was tentative because the direction that two centuries of case law has taken the bill of rights often surprises me.

Thanks for the link. I googled for a bit to see if there had been a decision by the Massachusetts Supreme Judicial Court, but it doesn't appear so.

I watched a bit of the oral argument [1] from last November, and the state's argument was that since they were only asking for an order for the defendant to decrypt the data (not hand over the decryption key), the the defendant's 5th amendment rights would not be violated.

[1] http://www2.suffolk.edu/sjc/archive/2013/SJC_11358.html

The point here, if I'm not mistaken, has to do with search warrants and what evidence is admissible in court.

Lots of things. Namely, they can't prove that you are even able to.

Sure they can. When they find your fingerprints on it, your name on the bill, people willing to testify that they consider the number that the phone is associated with to be yours, etc.

It's not bulletproof like some sort of mathematical proof, but the law operates with much looser standards of proof.

I didn't say they can't prove the phone belongs to you. They cannot prove that you know or remember the decryption key.

Additionally, in U.S. case law there is a precedent for 5th amendment protections applying to being forced to reveal encryption keys:

https://www.eff.org/press/releases/appeals-court-upholds-con...

What if I implemented a dead-man's switch so that if I don't respond regularly, it will be impossible for me access data?

Then there's the case of destruction of evidence. Depends on a number of circumstances, possibly including whether or not it takes a positive act or merely the lack of an action, on your part, to ensure the data continue to exist.

There are so many things that can be done digitally that bump up against the first, fourth, and fifth amendments as well as laws about the destruction of evidence. It's a mess.

Are you asking what would actually happen if you did this, or what would happen if you told the courts that you could not let them into your phone because you did this?

I also enjoyed the footnotes, like #19;

"Alderman v. United States, 394 U.S. 165, 176-80 (1969) (a person’s property interest in his own home was so great as to allow him to object to electronic surveillance of conversations emanating from his home, even though he himself was not a party to the conversations)."

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