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Judge Grants Search Warrant Forcing Woman to Unlock iPhone with Touch ID

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Re: Judge Grants Search Warrant Forcing Woman to Unlock iPhone with Touch ID

#141

Post by rayiner »

themartorana wrote: post #42
bitJericho wrote: post #35

Earlier quoted context omitted.

I don't think its a problem for someone actively breaking the law to be held indefinitely for contempt until they stop breaking the law. I thought being compelled to reveal a passphrase was no longer required.

That's a problem for me. Charge and prosecute them or let them go. Indefinite detention without a fair and speedy trial is unquestionably unconstitutional.

The contempt power is in the Judiciary Act of 1789, so it's hard to say that the founding generation would have considered it unconstitutional.

Moreover, what exactly would she be tried for? Do we need a trial to establish that she has in fact continued to disobey the judge's order to unlock the phone?

Re: Judge Grants Search Warrant Forcing Woman to Unlock iPhone with Touch ID

#142

Post by vox_mollis »

TazeTSchnitzel wrote: post #9

Touch ID is disabled when an iPhone initially powers on. So, if you want to prevent law enforcement compelling you to decrypt using your fingerprint , hold down the power button and then slide right to power off the phone. Now they need your password.

In most cases, you won't have the time. SOP in law enforcement raids is to secure their victim prior to securing anything else.

Re: Judge Grants Search Warrant Forcing Woman to Unlock iPhone with Touch ID

#143

Post by [deleted] »

randommodnar wrote: post #53
bitJericho wrote: post #48

Earlier quoted context omitted.

Well imagine a criminal is holding a piece of your property or even a person and not revealing where that is. Do you think it's reasonable to hold them for 30 days and then let them go and say "ah well I guess you can return that/them if you want cuz you did your time." A charge of contempt is still a charge.

So do you think it's reasonable that contempt of court can carry a life sentence without even being convicted by a jury of your peers? Is contempt of court a worse crime than assault or manslaughter? You have the right to not divulge information from your mind that would incriminate yourself. In the US this is called the 5th amendment.

[deleted]

Re: Judge Grants Search Warrant Forcing Woman to Unlock iPhone with Touch ID

#145

Post by rayiner »

spdustin wrote: post #112
bitJericho wrote: post #35

Earlier quoted context omitted.

I don't think its a problem for someone actively breaking the law to be held indefinitely for contempt until they stop breaking the law. I thought being compelled to reveal a passphrase was no longer required.

Would you mind terribly quoting the law that requires me to submit to the physical act of unlocking my phone? Since it's not a two-factor system, it is equivalent to a passphrase, which (IIRC) has been upheld to be a form of testimony, and therefore the fifth amendment SHOULD allow the suspect to refuse to "utter their fingerprint", so to speak. In any case, if the fingerprint isn't the same "testimony" as a passphra…

Merriam-Webster defines "testimony" as "something that someone says especially in a court of law while formally promising to tell the truth." The Supreme Court has interpreted this very broadly, to include anything that requires accessing information from the mind. That's why some courts have held that passwords are testimonial. But to read it to include touching your thumb to a fingerprint sensor obliterates any meaning the word has.

Re: Judge Grants Search Warrant Forcing Woman to Unlock iPhone with Touch ID

#146

Post by spdustin »

drags wrote: post #125
spdustin wrote: post #114

Earlier quoted context omitted.

Providing a fingerprint (identification) is different from imprinting your finger to unlock a device. It's been upheld in the past that passwords/passphrases used to unlock encrypted content are considered to be testimony (because it leads to the acquisition and collection of possibly protected "testimony"), and thus protected by the fifth amendment. In my opinion, there is no reason to see imprinting your finger on…

My understanding is that the "testimony" would be in the text of the password: compelling someone to reveal the password could be self-incriminating if _the password itself_ led them to additional evidence (e.g. a password of "I hid the revolver in the Conservatory"). [1] I can't think of a case involving a fingerprint where there's a similar risk since the fingerprint is arbitrary data. [1] https://en.wikipedia.org/…

The case law thus far has stated that compelling the decryption of a data storage device really hinges on this: What evidence is known by the prosecution to exist? In several cases, when the defendant makes known that incriminating evidence exists, or when the prosecution is independently aware of the existence of incriminating evidence (they saw the screen before you locked it, and testified that what they saw was evidence of a crime), the defendant was rightfully forced to decrypt the storage device.

However, when the prosecution has no specific knowledge that the evidence they seek exists, US courts have ruled that the defendant cannot be compelled to decrypt the storage device, since doing so would be forcing the defendant to reveal that incriminating evidence actually exists.

Applying your fingerprint to an iPhone is an act that, without argument, decrypts data on an encrypted storage media, as the act of applying your finger to the sensor instructs the device to retrieve the actual cryptographic information necessary (your passcode/passphrase, plus other hardware-specific data) to access the cleartext of the data.

The more and more I think about this, the more confidant I am that a fingerprint, while "something you have", forces you to disclose, by proxy, "something you know" to your phone.

I guess the question then is twofold: If you have a combination safe that may contain incriminatory evidence, and a safety deposit box that contains only the combination to your safe, can the courts compel you to give them the key to the safety deposit box? And if so, should they be able to?

Re: Judge Grants Search Warrant Forcing Woman to Unlock iPhone with Touch ID

#147

Post by swyman »

stcredzero wrote: post #109
JoshTriplett wrote: post #2

You can be compelled to provide fingerprints based on a warrant; I'm unsurprised (and not particularly bothered) that you can be compelled to use them on your own device. If you care about security, don't use a fingerprint alone; at most, only use it as a second factor for two-factor authentication. More generally, don't use anything that removes your ability to make a choice under duress, in whichever direction you…

You can be compelled to provide fingerprints based on a warrant; I'm unsurprised (and not particularly bothered) that you can be compelled to use them on your own device. I thought that fingerprints were to be provided to: 1) establish biometric proof of identity 2) establish the presence of a person in a particular place 3) establish a person handled a particular object Or does the law establish that the authorities…

Where does that list come from?

Re: Judge Grants Search Warrant Forcing Woman to Unlock iPhone with Touch ID

#148

Post by rayiner »

spdustin wrote: post #114
JoshTriplett wrote: post #2

You can be compelled to provide fingerprints based on a warrant; I'm unsurprised (and not particularly bothered) that you can be compelled to use them on your own device. If you care about security, don't use a fingerprint alone; at most, only use it as a second factor for two-factor authentication. More generally, don't use anything that removes your ability to make a choice under duress, in whichever direction you…

Providing a fingerprint (identification) is different from imprinting your finger to unlock a device. It's been upheld in the past that passwords/passphrases used to unlock encrypted content are considered to be testimony (because it leads to the acquisition and collection of possibly protected "testimony"), and thus protected by the fifth amendment. In my opinion, there is no reason to see imprinting your finger on…

Passwords have been interpreted to be testimonial because they require someone to tell authorities information in their mind. That is already a huge stretch of the 5th amendment. The purpose of the 5th amendment is not to prevent the collection of evidence. It is to mitigate the dangers of coerced confessions, which allow people to be easily convicted without evidence. It was never intended to be a general-purpose limitation on being compelled to cooperate in you own prosecution.

Re: Judge Grants Search Warrant Forcing Woman to Unlock iPhone with Touch ID

#149

Post by erichocean »

spdustin wrote: post #140

For me, the ongoing question that needs to be addressed by the court is this: Is the content of your smartphone considered to be documentary evidence (something you have) or testimony (something you know). I know I'm mixing definitions of the something you have/know combination, but it's a difference without a distinction, IMHO. I tell my phone, either directly or indirectly, all sorts of things that I would not othe…

> Is a smartphone a privileged companion?

From a legislative perspective, that's the outcome I'd most want: people's private smartphones are privileged, full stop. Otherwise, it becomes yet another thing we have to worry about.

Re: Judge Grants Search Warrant Forcing Woman to Unlock iPhone with Touch ID

#150

Post by spdustin »

rayiner wrote: post #145
spdustin wrote: post #112

Earlier quoted context omitted.

Would you mind terribly quoting the law that requires me to submit to the physical act of unlocking my phone? Since it's not a two-factor system, it is equivalent to a passphrase, which (IIRC) has been upheld to be a form of testimony, and therefore the fifth amendment SHOULD allow the suspect to refuse to "utter their fingerprint", so to speak. In any case, if the fingerprint isn't the same "testimony" as a passphra…

Merriam-Webster defines "testimony" as "something that someone says especially in a court of law while formally promising to tell the truth." The Supreme Court has interpreted this very broadly, to include anything that requires accessing information from the mind. That's why some courts have held that passwords are testimonial. But to read it to include touching your thumb to a fingerprint sensor obliterates any mea…

The reason the courts find the production of passwords to be testimonial is that they are used to access potentially incriminating evidence the specific existence of which the prosecution is not already aware of.

Further, the Supreme Court Justice Clarence Thomas (with Scalia joining) said that the 5th amendment applies to, "compelled production not just of incriminating testimony, but of any incriminating evidence." https://www.law.cornell.edu/supct/html/99-166.ZC.html

The courts' definition of "witness" is what's relevant in addition to "testimony". Is your smartphone a privileged "witness"? I would think that to be the ultimate decision that needs to be made by the Supreme Court, and one that may in fact hinge on what person is next appointed to the Supreme Court.

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