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Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

forbes.com

71–80 of 294 posts

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#71

Earlier quoted context omitted.

Look up studies on the reliability of witness testimony if you want to get really scared on how courts run.

Even forensic science can be used questionably. Really, once you're in the court room it's entirely rhetoric and fudge-factor.

> Really, once you're in the court room it's entirely rhetoric and fudge-factor

I agree with all the skepticism of particular types of evidence in this thread including witness testimony and forensic evidence (I'd also add even confessions to this list). But this rather extreme conclusion doesn't follow. Evidence can be uncertain and hard to interpret, but still lead us to truth. You just need more than one data point.

In a typical criminal trial (assuming the defendant is guilty) the prosecution generally will not hang on a single dubious piece of evidence. They will often assemble a veritable mountain, if they can, because they know that a competent defense attorney will make sure that the jury knows better than anyone the various ways in which evidence can mislead.

This is not to say that everything is rosy in the criminal justice system, and that juries always get it right. There are lots of big problems: Juries are often mysterious and unreliable. Defense attorneys often do a bad job (meaning, among other things, that the prosecution can get sometimes get away with presenting a weak case based on shoddy evidence). And, lest we forget, huge numbers of criminal prosecutions end in a guilty plea, and never go to trial in the first place (sometimes for good reasons, sometimes for bad).

But I want to push back on the extreme notion that the outcome of every trial is all about rhetoric. Sure, it plays a role and some cases are better than others. But I've never seen one that was "entirely rhetoric and fudge-factor." (I'm sure it happens, but not often enough that I've ever seen it.)

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#72

Earlier quoted context omitted.

Let’s hope the Supreme Court hears it and it stands.

It won't stand because it's not pragmatic. The issue around 'passwords being in your mind' is interesting, but they'll move past it. If you have evidence of a crime on your phone, it must be part of the process. There's nothing remotely unlawful about search of property so long as there is merit, oversight, warrant etc.. Ultimately, this will be no different than searching your car. Now, the cops doing it without a w…

If the police can force you to unlock a safe, they should also be allowed to force you to unlock a phone.

But, unlocking a phone should come with a lot of paper work and checks and balances to ensure that it's done only when really required?

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#73
post #45

As others have noted, this decision comes from a low-level court. And from what I've seen recently, it won't stand. Indeed, the basis of the opinion is iffy: > “If a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device,” the judge wrote. Because defendan…

I didn't read the opinion but even the quotes that Forbes pulled are eyebrow-raising. Like:

“The undersigned finds that a biometric feature is analogous to the 20 nonverbal, physiological responses elicited during a polygraph test, which are used to determine guilt or innocence, and are considered testimonial.”

This is the kind of wacky magistrate judge ruling that I'm sure the US Attorney rolls their eyes at.

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#74

Earlier quoted context omitted.

There is a Border Search Exception to the 4th Amendment established by the courts; this ruling has no relevance at at port of entry.

It has no relevance to the Border Patrol within 100 miles of a US border or coastline, which is even more ridiculous.

*If they have cause to believe you just crossed the border.

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#75
There is something extremely disturbing about the state wanting to go through your private papers.

The only way this should be possible in a democracy is rarely and only by due process with a judge's order and ample safeguards, explicit conditions built into the law with no room for abuse by 'friendly judges' or 'overzealous' state machinery.

Anything else is a police state in the making. This is fundamental to the definition of a democracy and you can't dilute this without diluting the meaning of democracy at which point you should use some other word to describe your system.

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#76

Earlier quoted context omitted.

> I thought that polygraphs were not accepted as evidence in court... Only if you "pass". Fail one and admissible or not, it'll be brought up.

I thought this smelled like totally useless Reddit-style cynical speculation, and 30 seconds of Googling confirmed my suspicion. No state allows admitting polygraph results without both parties' consent. Federal courts may or may not allow them depending on the judge, but if the judge allows them then the defendant is free to submit their passed polygraph (for whatever that's worth) just as equally as the prosecution…

That's my understanding as well.

https://www.hg.org/legal-articles/is-a-polygraph-test-admiss...

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#77
post #13

Earlier quoted context omitted.

Even forensic science can be used questionably. Really, once you're in the court room it's entirely rhetoric and fudge-factor.

My favorite case was where someone was accused of arson because the wood floor was found to contain traces of gasoline, even though none was found on the carpet or padding on top. Turns out that further testing by the defense showed lead also. Which means that the gasoline came from a cheap contractor several decades ago that used (at the time leaded) gasoline as a lacquer thinner for the hardwood floor. And the burn…

[deleted]

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#78
post #9

Relevant excerpt: > “The undersigned finds that a biometric feature is analogous to the 20 nonverbal, physiological responses elicited during a polygraph test, which are used to determine guilt or innocence, and are considered testimonial.” So it's analogous to a passcode because you're divulging something stored by your body, as opposed to e.g. a metal key which is artificial. Tangentially related, it's astounding t…

I thought that polygraphs were not accepted as evidence in court, but are still used by some government and private agencies. Also, just curious, have they been discredited as in that double-blind trials show no more than a 50/50 chance of being correct (i.e., flipping a coin)? Or is it that a high enough percentage of people will fail them even if innocent, or pass them even if guilty? The thing I don't like about t…

They're notoriously inaccurate, but I don't think that courts have given up on them yet. And if you think that's bad, just wait until you're given an inaccurate brain scan to tell whether you're lying.

https://www.sciencedirect.com/science/article/pii/S016926070...

>The rates of correct detection in guilty and innocent subjects were 86%, which was better than other previously used methods.

Eh, that sounds close enough to 'beyond a reasonable doubt', right?

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#79

Earlier quoted context omitted.

Let’s hope the Supreme Court hears it and it stands.

It won't stand because it's not pragmatic. The issue around 'passwords being in your mind' is interesting, but they'll move past it. If you have evidence of a crime on your phone, it must be part of the process. There's nothing remotely unlawful about search of property so long as there is merit, oversight, warrant etc.. Ultimately, this will be no different than searching your car. Now, the cops doing it without a w…

The problem with forcing someone to reveal a secret (e.g. a password), is that ultimately, there's no way to prove that someone actually knows the password. If I say that I forgot the password, and a judge throws me in jail for contempt of court, I could rot there forever. There is absolutely no way for me to ever prove that I truly forgot the password. You can't prove a negative.

With fingerprints or face scanning, neither of these is an issue. You put your fingerprint on the device, or you scan your face.

So, I think that forcing someone to reveal a secret that is purely in their head is fundamentally different than compelling other forms of access (physical keys, fingerprint scans, face scans, etc.). The physical access methods can be verified to either work or not. That's not true for mental secrets.

Re: Feds Can't Force You to Unlock Your iPhone with Finger or Face, Judge Rules

#80

Earlier quoted context omitted.

Let’s hope the Supreme Court hears it and it stands.

It won't stand because it's not pragmatic. The issue around 'passwords being in your mind' is interesting, but they'll move past it. If you have evidence of a crime on your phone, it must be part of the process. There's nothing remotely unlawful about search of property so long as there is merit, oversight, warrant etc.. Ultimately, this will be no different than searching your car. Now, the cops doing it without a w…

The issue arises when the knowledge of the password itself is incriminating. The 5th amendment prohibits forced self incrimination.

Forcing a suspect to divulge information that is directly incriminating will not stand constitutional review, regardless of the nature of the information.

You have the right to remain silent.

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