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Police can’t demand you reveal your phone passcode then tell a jury you refused

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Re: Police can’t demand you reveal your phone passcode then tell a jury you refused

#21

Post by Cthulhu_ »

nixpulvis wrote: post #5

Hmmmm... I was under the impression this was already the case. I remember reading about this a while ago when I was learning that they can force you to provide a fingerprint or face-scan.

Which is messed up. That said, biometric unlock is identification, NOT authorization; if you have secrets on your phone, do not use biometrics. They are a low to medium security convenience.

Second, of course, don't keep evidence of crimes on your phone.

And final tip, on an iphone, hitting the lock button on the side five times rapidly will disable the biometric unlock until the passcode has been filled in. It also pops up with the option to call emergency services. Spamming the lock button is considered a panic button.

Re: Police can’t demand you reveal your phone passcode then tell a jury you refused

#22

Post by j-bos »

redis_mlc wrote: post #4
evgen wrote: post #2

Claim the EFF, but headline statement is not an assertion that has held up in court.

So far it has held up in the court of appeals, but there's another hearing upcoming. Note that a defendant is in a much stronger position if they have maintained complete silence even before the password is requested - you can't just clam up halfway through a conversation.

IIRC under the 5th amendment, you can indeed clam up at any time you so choose,except in court under oath. And even then it's not cut and dry.

Re: Police can’t demand you reveal your phone passcode then tell a jury you refused

#23

Post by Cthulhu_ »

postingawayonhn wrote: post #13
emilfihlman wrote: post #10

But wait, does this say that another court order can compel you to unlock it anyways? That doesn't seem logical at all.

Right to remain silent vs. a court order to provide access to evidence.

Yeah but that access has to come from your brain; doesn't it therefore fall under the 5th amendment that you have the right to remain silent and something something self-incrimination?

I mean I'm trying to think of other instances of getting access to evidence, and the only things I can think of is companies having to provide certain administrative documentation that may not even be their own. But that's probably me lacking imagination.

Re: Police can’t demand you reveal your phone passcode then tell a jury you refused

#24

Post by joshjdr »

evgen wrote: post #6
WalterGR wrote: post #3

Earlier quoted context omitted.

Seems to have held up in the Utah court of appeals: “Instead, during trial, the prosecution offered testimony and argument about his refusal. The defense argued that this violated the defendant’s Fifth Amendment right to remain silent, which also prevents the state from commenting on his silence. The court of appeals agreed, and now the state has appealed to the Utah Supreme Court.” In that text, “prevents the state…

Fair point. It has held up in a single state court of appeals, so I was definitely wrong about this being without substance on appeal, but the jurisdiction of the ruling is quite small and I am unaware of anything federal backing the claims being made.

I’m not sure this is correct. A state court of appeals made this ruling, but it wasn’t a matter of state law (the “law” is the US constitution and the precedent was a US Supreme Court case); I believe the “jurisdiction” (e.g. where this ruling establishes precedent as far as how the 5th amendment applies in this situation) is the entire US (unless a higher court rules otherwise).

Not a lawyer but I think a future defense attorney with a client in a similar situation in a another state would reference this ruling and try to convince a judge that their client’s situation was similar enough to invoke that ruling, whereas a prosecutor would be making the case that it was different enough that it did not apply (vs saying that it was a different jurisdiction and did not apply).

Re: Police can’t demand you reveal your phone passcode then tell a jury you refused

#25

Post by calvinmorrison »

LinuxBender wrote: post #20

Sortof off topic question. I've never owned a smart phone but might get one soon assuming I can find a decent one that will run grapheneOS. Is there an app that can be given permission to intercept the unlock code and upon receiving the panic/under duress code, discretely put the phone into a "parental controls" configuration that sandboxes all your data and only presents the storage you want the law enforcement chil…

I don't know - but 1password absolutely does have this! Useful if you're in a scenario where you don't have the American version of human rights. You can hide stuff for a period of time

Re: Police can’t demand you reveal your phone passcode then tell a jury you refused

#26

Post by cat199 »

Cthulhu_ wrote: post #21
nixpulvis wrote: post #5

Hmmmm... I was under the impression this was already the case. I remember reading about this a while ago when I was learning that they can force you to provide a fingerprint or face-scan.

Which is messed up. That said, biometric unlock is identification, NOT authorization; if you have secrets on your phone, do not use biometrics. They are a low to medium security convenience. Second, of course, don't keep evidence of crimes on your phone. And final tip, on an iphone, hitting the lock button on the side five times rapidly will disable the biometric unlock until the passcode has been filled in. It also…

> identification, NOT authorization

if a user can't decouple the two and control them as distinct mechanisms, the user interaction serves as both and this distinction is irrelevant

apologies but bringing this particular distinction up when has no bearing on the discussion is a pet peeve of mine

Re: Police can’t demand you reveal your phone passcode then tell a jury you refused

#27

Post by CapitalistCartr »

Zak wrote: post #16
redis_mlc wrote: post #4

Earlier quoted context omitted.

So far it has held up in the court of appeals, but there's another hearing upcoming. Note that a defendant is in a much stronger position if they have maintained complete silence even before the password is requested - you can't just clam up halfway through a conversation.

You most certainly can clam up halfway through a conversation, and the fact that you did cannot be used against you in a criminal trial. It's a common (but not mandatory) part of the Miranda warning that a person being questioned in custody can stop answering questions at any time. https://en.wikipedia.org/wiki/Miranda_warning

That has not always worked out. For instance, "clamming up" in the midst of questioning, but not verbally invoking your right to remain silent has been used against a defendant. The entire process is a minefield which is only avoided by immediately stating your rights, and not cooperating with the police at all. Unfortunately, in the USA, treat the police as a third-world country.

Re: Police can’t demand you reveal your phone passcode then tell a jury you refused

#28

Post by ajb »

soco wrote: post #15
opheliate wrote: post #11

Meanwhile, in the UK: https://www.hcsolicitors.co.uk/news/giving-the-police-your-p... If a judge authorises a notice, under RIPA, you can be served a 2 year sentence for failing to disclose your phone's passcode.

I think the difference is from where the request comes - from the police during interrogation, or from the judge during trial.

Not quite - the police have to ask a judge for authorisation, but it's not during a trial, so there is no opportunity for anyone to oppose it. It's just that there is a formal record so if the system is abused, there is evidence of the fact, extent and who is responsible.

Re: Police can’t demand you reveal your phone passcode then tell a jury you refused

#29

Post by colejohnson66 »

LinuxBender wrote: post #20

Sortof off topic question. I've never owned a smart phone but might get one soon assuming I can find a decent one that will run grapheneOS. Is there an app that can be given permission to intercept the unlock code and upon receiving the panic/under duress code, discretely put the phone into a "parental controls" configuration that sandboxes all your data and only presents the storage you want the law enforcement chil…

If the police are aware of this “feature”, that’s an easy contempt and destruction of evidence charge among others. I’d recommend just not doing it.

Re: Police can’t demand you reveal your phone passcode then tell a jury you refused

#30

Post by Jowsey »

LinuxBender wrote: post #20

Sortof off topic question. I've never owned a smart phone but might get one soon assuming I can find a decent one that will run grapheneOS. Is there an app that can be given permission to intercept the unlock code and upon receiving the panic/under duress code, discretely put the phone into a "parental controls" configuration that sandboxes all your data and only presents the storage you want the law enforcement chil…

I wonder if there'd then be a worse penalty if police were to discover you were doing this, were the wipe timer not to trigger, and if that'd be worth the risk. Definitely an interesting idea, though
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