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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

#171

Post by Matt3o12_ »

jdmichal wrote: post #159
jedmeyers wrote: post #128

Earlier quoted context omitted.

No, I mean, disable Touch ID before any potential situation where the phone might be seized for any reason, not after a judge had ordered you to unlock the phone with a thumbprint.

The moment you believe the phone is going to be seized by law enforcement and you act accordingly to make it more difficult or impossible to retrieve data from it, you are guilty of spoliation / tampering of evidence. This is the same set of laws that makes it illegal to shred papers before law enforcement can get to them. Locking or erasing your phone is simply the digital equivalent.

Couldn't you also apply this argument to everything? The client turned on full disk encryption 5 years before this arrest because he wanted to make it difficult for anybody (including law enforcement) to read the content of the disk.

I think you could just argue that you didn't want the disturbed and/or wanted to save some battery.

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

#172

Post by rayiner »

bsder wrote: post #167
rayiner wrote: post #141

Earlier quoted context omitted.

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?

Yes, we probably would need a trial in that instance. The courts really don't get to hold someone indefinitely without charging them with something. Contempt is generally used as a quick and dirty hack for someone disobeying the procedures of the court. Not providing a fingerprint to unlock evidence is WAY beyond that scope and probably should require a hearing and trial. Now, she could be detained while that hearing…

A trial for what?

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

#173

Post by philjohn »

basch wrote: post #161
ubernostrum wrote: post #121

Earlier quoted context omitted.

Don't think of Touch ID as unlocking the phone. You know how you can "sudo" and type your password (if you have an account with sudo privileges) and then for a few minutes afterward you don't have to type your password when you use sudo? Think of Touch ID like that: the passcode is still the thing that unlocks the phone, but once it's been entered you can use Touch ID for a little while, in much the same way that sud…

that is what i am asking, where is the 48 hour part. ive never left my phone untouched for 48 hours, except in a powered off state.

Everything you ever wanted to know about iOS security (and a few things you didn't know you wanted to know): https://www.apple.com/business/docs/iOS_Security_Guide.pdf

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

#174

Post by Matt3o12_ »

kefka wrote: post #66

"Judge, Which finger am I required to try?" Edit: the question is a legal trap to kept from being held in contempt. After 2 or 3 scans, the device demands a password. By asking which finger, they have a 20% chance of getting right finger.

No, they have 5 tries, and most people use at least 2 fingers (I use 3) so you can unlock it with both hands.

Furthermore, most people use at least their thumb. So if the judge said use your left and right thumb, the chance of succeeding would be a lot higher (statistically speaking). If you use, let's say, your pinky finger, the chance of a judge guessing the right fingerprint is even lower because he will try out the most obvious choices before that.

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

#175

Post by randyrand »

djrogers wrote: post #126
r00fus wrote: post #71

Earlier quoted context omitted.

It's also disabled after 48h from your last TouchID login. I'm surprised that this order can be compelled in such a short timeframe.

This was a search warrant issued at the time of her arrest (within less than an hour according to the article). The woman subsequently pled 'no contest' to the charges and unlocked her phone. In short, this doesn't mean this is a settled issue - none of this has been tested in court.

Could she have refused and held in contempt for 48 hrs? After which she could no longer be held in contempt?

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

#176

Post by jdmichal »

Matt3o12_ wrote: post #171
jdmichal wrote: post #159

Earlier quoted context omitted.

The moment you believe the phone is going to be seized by law enforcement and you act accordingly to make it more difficult or impossible to retrieve data from it, you are guilty of spoliation / tampering of evidence. This is the same set of laws that makes it illegal to shred papers before law enforcement can get to them. Locking or erasing your phone is simply the digital equivalent.

Couldn't you also apply this argument to everything? The client turned on full disk encryption 5 years before this arrest because he wanted to make it difficult for anybody (including law enforcement) to read the content of the disk. I think you could just argue that you didn't want the disturbed and/or wanted to save some battery.

> Couldn't you also apply this argument to everything? The client turned on full disk encryption 5 years before this arrest because he wanted to make it difficult for anybody (including law enforcement) to read the content of the disk.

No. The difference is that the action is taken to obstruct a specific investigation. Generally protecting information without regard to a specific investigation is not obstruction. Same as shredding papers years before they become relevant to an investigation is also not obstruction.

> I think you could just argue that you didn't want the disturbed and/or wanted to save some battery.

Like perjury, proving obstruction may be difficult. That doesn't make it any less illegal.

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

#179

Post by rayiner »

DannyBee wrote: post #155
spdustin wrote: post #152

Earlier quoted context omitted.

> Passwords have been interpreted to be testimonial because they require someone to tell authorities information in their mind. That's not true. They've been interpreted to be testimonial because they are a part of a chain of events that results in the production of incriminating evidence that the prosecution isn't otherwise independently aware of . If the prosecution can't say "he has plans for the bomb on his lapto…

...

On what basis? spdustin cites United States v. Hubbell elsewhere in this thread, but I don't think that case establishes that a defendant cannot be compelled to do anything that would be "part of a chain of events that results in the production of incriminating evidence that the prosecution isn't otherwise independently aware of."

Hubbell suggests that "being forced to surrender the key to a strongbox" does not violate the Fifth Amendment. Under spdustin's generalization, the strongbox hypothetical would violate the Fifth Amendment.

Hubbell is based on the idea that providing documents responsive to a subpoena is itself a testimonial act, because it is "necessary for [the Defendant] to make extensive use of 'the contents of his own mind' in identifying the hundreds of documents responsive to the requests on the subpoena." I don't see how the purely physical act of unlocking the phone is similar.

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

#180

Post by DannyBee »

rayiner wrote: post #179
DannyBee wrote: post #155

Earlier quoted context omitted.

...

On what basis? spdustin cites United States v. Hubbell elsewhere in this thread, but I don't think that case establishes that a defendant cannot be compelled to do anything that would be "part of a chain of events that results in the production of incriminating evidence that the prosecution isn't otherwise independently aware of." Hubbell suggests that "being forced to surrender the key to a strongbox" does not viola…

Honestly, given the circuit splits that exist here i think neither of us is going to convince the other. So i'll simply retract my "right", and move on :)
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