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

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

#201

Post by int_19h »

checkyoursudo wrote: post #52
bootlooped wrote: post #37

Earlier quoted context omitted.

I'm not sure how the courts will differentiate between biometric data related to authentication and biometric data from blood tests, breathalyzers or DNA tests. The latter are, in a sense, examples of forcing you to divulge something stored in your body.

Implied consent (the authority the police use to try to force you to divulge your blood alcohol content) is a well-established area of law. The courts can differentiate it by saying that the legislature has written implied consent laws that cover what you are deemed to have consented to when operating a motor vehicle, and that the legislature has not written implied consent laws for cell phones/etc. Right now it's a…

> Implied consent (the authority the police use to try to force you to divulge your blood alcohol content) is a well-established area of law.

Indeed - warrantless blood tests have been found unconstitutional by SCOTUS three years ago (Birchfield v. North Dakota).

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

#202

Post by darkpuma »

oskkejdjdkjd wrote: post #199
darkpuma wrote: post #144

Earlier quoted context omitted.

> "What if the kid hadn't committed the murder but was duped into making incriminating statements anyway?" Then maybe it would make a better example for discussions like this. As it stands, that anecdote is little more than "the police are good at their jobs and they caught a murderer which is unambiguously good for everybody, but what if they were instead using their skills for something bad?" > "Furthermore, consid…

As long as a witch is burned who cares how they did it? Cops lying and deceiving is fundamentally wrong. Don’t pretend that it’s required for police to get convictions. There are other ways.

Comparing the arrest of a murder to witch hunting is absurd. You know that's absurd, you don't need me to explain it to you.

> "Cops lying"

You already admitted the cops in your example didn't lie. They're guilty only of having a calm demeanor when interrogating a murder suspect, which for some reason you consider morally abhorrent.

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

#203

Post by brennebeck »

someone7x wrote: post #138
killaken2000 wrote: post #133

Earlier quoted context omitted.

Francis Rawls is still in jail after 2 years for not decrypting his hard drive. He's in contempt indefinitely until he decrypts the drive.

Reminds of that guy in The Crucible that gets crushed with rocks for refusing to take part in the witch trial.

I do believe you mean Giles Corey.

https://en.wikipedia.org/wiki/Giles_Corey

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

#204

Post by DannyBee »

richardthered wrote: post #79
sonnyblarney wrote: post #68

Earlier quoted context omitted.

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,…

You've completely misunderstood the law here, unfortunately, and argued something that that goes in the opposite direction of this ruling.

The law is actually that physical features/etc can be compelled because they are not testimonial.

“[i]t is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have.”

United States v. Wade

"“the task that Diamond was compelled to perform—to provide his fingerprint—is no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing.”"

State v. Diamond (This is a state case but applying the federal constitution).

Note also that fingerprints are almost always taken at booking, etc. They just aren't transferable in a way that lets the police use them to unlock the phone.

Passcodes, on the other hand are often testimonial. Entering the combination to a safe proves you probably had ownership/control of the safe, for example.

In those situations, generally the government has to be able to prove that you own it. If they can, you will be forced to open the safe.

In the case of phones, the only interesting intermediate cases are phones where ownership can't be proven easily by other evidence.

(Note:I don't necessarily agree with these doctrines, but that is the current law)

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

#205

Post by 5ML »

ransom1538 wrote: post #150
kevin_b_er wrote: post #2

I won't believe this ruling is safe until it goes thru higher levels. The Executive Branch has over the past 2 decades has shown a large propensity for attempts to disregard the 4th and 5th amendments, and I see no change in this posture or the attempts to subvert them with the current political climate.

"I won't believe this ruling is safe until it goes thru higher levels." Yes - right now, there are people being held indefinitely for not decrypting hard drives the US [1]. The law used is: "All Writs Act (28 U.S.C. § 1651)". As one judge said, "We don't want your password - we just want the hard drives in unencrypted state." https://www.bleepingcomputer.com/news/legal/man-who-refused-...

I fear I'll be barbecued for asking, but I must: What's the alternative? I am a privacy advocate and understand that the law can (and likely will) abuse a forced decryption law.

However, the story you linked is about a _police officer_ who was suspected of child pornography. His sister reported him to the police and 'content stored on the encrypted hard drive matched file hashes for known child pornography content'.

How can you look in the mirror and think he should go free without the evidence being examined? I couldn't live in a world where a suspect could say "Well, I forgot the password" and walk away Scott-free on such an ugly crime.

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

#206

Post by rayiner »

kevin_b_er wrote: post #2

I won't believe this ruling is safe until it goes thru higher levels. The Executive Branch has over the past 2 decades has shown a large propensity for attempts to disregard the 4th and 5th amendments, and I see no change in this posture or the attempts to subvert them with the current political climate.

It’s okay if you think we should not force people to unlock their phones pursuant to a criminal investigation. But it’s disingenuous to paint this as an attempt to “disregard” the 4th and 5th amendments. The Supreme Court in the 1950s and 1960s expanded the scope of those amendments far beyond the text. They turned the 4th amendment into a general purpose “privacy” amendment, even though the amendment doesn’t use that word or anything nearly as expansive. And they took the 5th amendment, which refers only to forcing someone to testify against themselves in a criminal case, and turned it into a broad protection against self incrimination. But that amendment doesn’t use the phrase “self incrimination” or anything nearly as broad.

This is not novel. It’s always been the rule that the police can force you to turn over evidence in your possession, even though they can’t force you to serve as a “witness” against yourself. The idea that turning over a password is like forcing someone to testify against himself because it involves a mental recollection is already a very stretchy interpretation of the 5th amendment. Extending that even further to situations that aren’t testimonial in any way (Face ID or Touch ID) is hard to defend as a matter of Constitutional interpretation (even if you think it is good policy).

The background principle of the law is that courts are entitled to all the evidence so they can find the truth. The amendments are exceptions to those rules created for specific purposes. But they are exceptions; they are not the rule. To the extent that anyone is trying to “bypass” something, folks reading those amendments unreasonably broadly are trying to bypass the general rule in favor of discovering evidence.

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

#207

Post by DannyBee »

DannyBee wrote: post #15
jakelazaroff wrote: post #3

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…

"Tangentially related, it's astounding to me that polygraphs are still considered valid evidence given how widely they've been discredited." They generally are not considered valid evidence.

(to expand, they are not admissible without consent of both parties, and even then, the court would likely find it not relevant)

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

#208

Post by MapleWalnut »

5ML wrote: post #205
ransom1538 wrote: post #150

Earlier quoted context omitted.

"I won't believe this ruling is safe until it goes thru higher levels." Yes - right now, there are people being held indefinitely for not decrypting hard drives the US [1]. The law used is: "All Writs Act (28 U.S.C. § 1651)". As one judge said, "We don't want your password - we just want the hard drives in unencrypted state." https://www.bleepingcomputer.com/news/legal/man-who-refused-...

I fear I'll be barbecued for asking, but I must: What's the alternative? I am a privacy advocate and understand that the law can (and likely will) abuse a forced decryption law. However, the story you linked is about a _police officer_ who was suspected of child pornography. His sister reported him to the police and 'content stored on the encrypted hard drive matched file hashes for known child pornography content'.…

That's the cost of liberty.

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

#209

Post by vxNsr »

5ML wrote: post #205
ransom1538 wrote: post #150

Earlier quoted context omitted.

"I won't believe this ruling is safe until it goes thru higher levels." Yes - right now, there are people being held indefinitely for not decrypting hard drives the US [1]. The law used is: "All Writs Act (28 U.S.C. § 1651)". As one judge said, "We don't want your password - we just want the hard drives in unencrypted state." https://www.bleepingcomputer.com/news/legal/man-who-refused-...

I fear I'll be barbecued for asking, but I must: What's the alternative? I am a privacy advocate and understand that the law can (and likely will) abuse a forced decryption law. However, the story you linked is about a _police officer_ who was suspected of child pornography. His sister reported him to the police and 'content stored on the encrypted hard drive matched file hashes for known child pornography content'.…

> How can you look in the mirror and think he should go free without the evidence being examined? I couldn't live in a world where a suspect could say "Well, I forgot the password" and walk away Scott-free on such an ugly crime.

This is the price we pay for an imperfect world, I'd rather a few murderers walk than many innocent men be imprisoned. Your balanced, nuanced idealism simply doesn't work at scale, you cannot assume that every judge, jury, and LEO will be good, so you've got to give the criminals rights even if you're pretty sure they're criminals.

As a judge or LEO I'd have a much harder time looking in the mirror knowing I stole an innocent man's life than knowing that I might not have stopped every criminal.

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

#210

Post by IgorPartola »

sathackr wrote: post #192
IgorPartola wrote: post #181

Earlier quoted context omitted.

If your password is “I killed him and the body is hidden under my deck” and that’s the literal crime you are being charged with, sure. But your password is usually not an admission of a crime, so that’s not the argument. Even if your encrypted laptop contains evidence, you cannot plead the fifth if the prosecutors know it’s there. As long as they can get a warrant and when they get the data say “see your honor? Here…

Not quite. It depends on what you are charged with. In a case of say, possession of stolen information, the laws of possession applied to contraband such as drugs would likely apply. Since the information wouldn't be in your actual possession(literally in your hands or on your person), then they would fall under constructive possession laws. In most states, constructive possession has 3 parts -- 1) You must have know…

Thanks for the info. That makes sense: if by revealing that you know the password, you are also revealing constructive possession, then your explanation adds up. But if it’s very obvious that it is your phone, which I think is the more common case for some of these situations, it doesn’t, right?
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