It's unconstitutional for cops to force phone unlocking, court rules:
Indiana's Supreme Court has ruled that the Fifth Amendment allows a woman accused of stalking to refuse to unlock her iPhone. The court held that the Fifth Amendment's rule against self-incrimination protected Katelin Seo from giving the police access to potentially incriminating data on her phone.
The courts are divided on how to apply the Fifth Amendment in this kind of case. Earlier this year, a Philadelphia man was released from jail after four years of being held in contempt in connection with a child-pornography case. A federal appeals court rejected his argument that the Fifth Amendment gave him the right to refuse to unlock hard drives found in his possession. A Vermont federal court reached the same conclusion in 2009—as did a Colorado federal court in 2012, a Virginia state court in 2014, and the Massachusetts Supreme Judicial Court in 2014.
But other courts in Florida, Wisconsin, and Pennsylvania have reached the opposite conclusion, holding that forcing people to provide computer or smartphone passwords would violate the Fifth Amendment.
Lower courts are divided about this issue because the relevant Supreme Court precedents all predate the smartphone era. To understand the two competing theories, it's helpful to analogize the situation to a pre-digital technology.
There's much more to the matter than just the excerpt shown here -- it's well worth reading the entire article so as to not argue from ignorance.
(Score: 3, Insightful) by fustakrakich on Thursday June 25 2020, @04:03AM (10 children)
What possible reasonable logic could compel me to aid anybody in my own prosecution? It's ridiculous.
La politica e i criminali sono la stessa cosa..
(Score: 1, Touché) by Anonymous Coward on Thursday June 25 2020, @04:24AM (1 child)
If you confess, the Lord will go easier on you. Have you not read Foucault's "Discipline and Punish"? Made the point that several times, during the pouring of molten lead into wounds, cutting out of the tongue, and everyone's favorite, the drawing and quartering, they would pause to ask the condemned if he repented, to save his immortal soul. So nice of them, really.
(Score: 0) by Anonymous Coward on Thursday June 25 2020, @05:32AM
> Have you not read Foucault's "Discipline and Punish"?
Spoiler alert: Punish is better.
(Score: 3, Insightful) by shortscreen on Thursday June 25 2020, @06:02AM (1 child)
First we need to find out what possible reasonable logic could compel someone to carry around an electronic device that spies on them on behalf of corporations/government.
(Score: 2) by Freeman on Thursday June 25 2020, @03:30PM
Convenience and addiction.
Joshua 1:9 "Be strong and of a good courage; be not afraid, neither be thou dismayed: for the Lord thy God is with thee"
(Score: 5, Insightful) by Thexalon on Thursday June 25 2020, @02:12PM (4 children)
That's easy: The cops and prosecutors create a scenario in which a conviction, even if you didn't commit the crime, isn't the worst thing that could happen to you.
For example, for minor offenses, just raise the bail to much higher than you can pay and more than 10 times any fine (so going to a bail bondsman will cost more than pleading out), and now the short-term rational thing to do is to plead out even if you're innocent, because you'll lose absolutely everything you own if you go to prison and bail is more expensive than pleading out.
For more serious offenses, the way you convince innocent people to accept guilt is to make the pre-trial confinement take longer than any punishment, and/or make the pre-trial confinement in as dangerous a place to be as possible. And of course you make any bail completely beyond the ability of the prisoner to pay it, even with loans from family or friends or a bondsman involved. So you make it so you can either sit in jail for 3-5 years risking getting beaten, raped, or killed every day before you go to trial, or you can plead guilty and only have to survive 2 years in there.
And if that isn't an option, just have the cops be able to kill you with impunity for any reason they feel like or no reason at all. Including when you're already under arrest or in jail awaiting arraignment. So you can either take your conviction and 10 years in prison plus your curtailed rights once you get out, or your life is entirely over. Your choice.
And this is the mockery of justice that many if not most Americans live under, right now.
The only thing that stops a bad guy with a compiler is a good guy with a compiler.
(Score: 0) by Anonymous Coward on Thursday June 25 2020, @05:15PM (1 child)
you forgot the other option: going out in a blaze of glory for anything that could cost you over $x amount of time in jail. \
Better to be dead than a slave.
https://invidio.us/watch?v=XJTjIlH3sbE [invidio.us]
(Score: 3, Informative) by Thexalon on Thursday June 25 2020, @07:44PM
That "blaze of glory" is likely to kill some decent folks. Possibly including members of your friends and family. And even if it doesn't, you've now deprived your friends and family of whatever you were contributing to them. So no, it's usually not a rational choice.
The only thing that stops a bad guy with a compiler is a good guy with a compiler.
(Score: -1, Troll) by Anonymous Coward on Thursday June 25 2020, @07:22PM
Which in the Democrats' minds is A-OK if the target happens to be someone who worked with Trump. Though in Flynn's case, it was threats made to prosecute his family rather than extended stays in prison that got him to plead guilty.
There is still a right to a speedy trial in this country. However if your defense attorney asks for continuances, the clock gets pushed out, which is why many languish in jail waiting for their trials.
(Score: 3, Insightful) by PartTimeZombie on Thursday June 25 2020, @10:44PM
That sounds like a dreadful place to live.
(Score: 2) by wisnoskij on Friday June 26 2020, @02:00PM
The fifth and surrounding laws and rights are pretty specific. You are not required to testify against yourself.
But you are required to aid the state in investigations. For example, if you have a key to a safe, you are required to hand it over. Similarly, you cannot hide or destroy said safe.
The fifth very specifically makes it legal to claim your innocence and not give an accurate and thorough summary of your crimes to the courts. It does not pertain to any other circumstances.
You very well might not want to provide the police with evidence against you, but that does not make it legal.
(Score: 0, Offtopic) by Anonymous Coward on Thursday June 25 2020, @04:53AM (1 child)
Choking a man with the knee down the neck for nine minutes, the man already restrained with handcuff and down on the ground, that constitutional?
Any Constitutional scholar in the house?
(Score: 0) by Anonymous Coward on Thursday June 25 2020, @05:35AM
If the Constitution doesn't match your innate knowledge of justice then tear that shit up or Amend it or whatever you Yanks do.
Everyone knows what shitty treatment is. If you don't, then please come and work for me.
(Score: 4, Interesting) by shortscreen on Thursday June 25 2020, @05:57AM (1 child)
Hubbell argued that he had been compelled to incriminate himself because he was essentially forced to demonstrate his own knowledge of the requested documents in order to comply with the request. (And the court agreed.)
The author of TFA suggests that unlocking a phone is closer to the strongbox analogy, where information resulting from a subsequent search by police is considered to stand on its own rather than being something that came from the defendant's testimony.
So there is a question as to whether data on a phone or the passcode itself count as testimony. It's interesting to reference this older article: https://www.latimes.com/archives/la-xpm-1994-02-02-mn-18241-story.html [latimes.com]
Asking for a passcode is not oral testimony?
But the Indiana ruling also compared it to a fishing expedition. The cops apparently couldn't say what they expected to find on the phone. They just wanted to look. It sounds to me like their case must be pretty weak, if after attempting to gather evidence from the alleged stalking victim and various third parties (eg. the phone company or a social media site) they still couldn't describe how picking through the defendant's phone would prove guilt.
(Score: 2) by wisnoskij on Friday June 26 2020, @02:09PM
No, reread your own comment.
"where information resulting from a subsequent search by police is considered to stand on its own rather than being something that came from the defendant's testimony."
Information stored on a smartphone stands on its own. The court does not require oral testimony, they just require the password to acquire the evidence. The password never needs to see the inside of a courtroom. The data stored on a phone is not an opinion that rides on the reliability of the defendant unless it is his personal diary they are reading.
data being electronic does not make it opinion based.
That said, he has a case if they try to use his knowledge of the password against him in court. But if they already know it is his phone/file and they just need to get into it. The law is pretty cut and dry.
(Score: 2) by Beryllium Sphere (r) on Thursday June 25 2020, @06:04AM (5 children)
The issues and the history, through the eyes of someone who thinks in legal terms. It's an interesting alternate perspective.
https://reason.com/2020/06/24/indiana-supreme-court-creates-a-clear-split-on-compelled-decryption-and-the-fifth-amendment/ [reason.com]
(Score: -1, Troll) by Anonymous Coward on Thursday June 25 2020, @04:51PM (4 children)
So much blablabla when the answer is obvious. Check the gender of the people involved.
Men are all rapists and pedophiles who merely have yet to be caught in the act. Thus the forgone conclusion doctrine applies. This is also why we simply expel them from college upon a mere unfounded accusation by a third party.
Well, one man behind bars or fucked out of all his credits and still on the hook for a $20k student loan he can't discharge through bankruptcy is less competition for the Real Men, those upstanding Christian men who would never defile a woman's honor.
A woman, though? How can a woman possibly stalk a guy? Women are amazing, they're pretty, they're desirable, and they're so amazing, up there on their pedestals, so wonderful, so perfect, so angelic. Or as the feminists put it, they're "superior beings."
So of course a woman has a fifth amendment right to not unlock her phone. It's not a forgone conclusion. In fact, it's a forgone conclusion that she cannot possibly be guilty. This guy is a damned incel for rejecting her affection! He's the one we should be throwing the book at instead!
Shirely, Aristarchus will agree with my conclusions.
(Score: 3, Touché) by PartTimeZombie on Thursday June 25 2020, @10:49PM (3 children)
It must be awful to live in constant fear of half the population.
(Score: 0) by Anonymous Coward on Thursday June 25 2020, @11:08PM (1 child)
Men are getting canceled this week for flirting with women outside of work. Or just straight up being hit with false accusations.
Worst of all, male feminist allies are finding out that years of estrogen-fueled virtue signaling can't save them from being destroyed. But what does all this have to do with unlocking phones?
(Score: 0) by Anonymous Coward on Friday June 26 2020, @12:55AM
(Score: 0) by Anonymous Coward on Friday June 26 2020, @12:49AM
Ask any woman. She'll tell you what that's like.
(Score: 3, Insightful) by Runaway1956 on Thursday June 25 2020, @07:05AM (7 children)
then it's protected.
Anything in your mind is protected. That goes for passwords, pins, gestures, and what-have-you. If there is a key laying in the console of your car, it is NOT protected by the fifth, or the pint, or the quart. If you wrote the password on the sun visor of your car, it is not protected. If you wrote it on the inside of your tire, before having the tire mounted, the knowledge that you did so is protected, but the tire is not.
The law can't threaten, torture, coerce, or otherwise force knowledge out of your mind, or out of your mouth.
(Score: 0) by Anonymous Coward on Thursday June 25 2020, @07:53AM (2 children)
I don't know, something like a chunk of lead in a copper jacket?
(Score: 2) by inertnet on Thursday June 25 2020, @08:43AM (1 child)
I heard that Elon Musk is working on a more sophisticated way to get into your skull.
(Score: 0) by Anonymous Coward on Thursday June 25 2020, @10:45AM
He got into Grimes pants, so he can get into your skull.
(Score: 1, Insightful) by Anonymous Coward on Thursday June 25 2020, @10:01AM (1 child)
Tell that to anyone tortured in the last few decades because they didn't know or didn't want to tell their aggressors something they wanted to hear.
https://en.wikipedia.org/wiki/Extraordinary_rendition#Example_cases [wikipedia.org]
That constitution, it's just a piece of paper.
(Score: 0) by Anonymous Coward on Thursday June 25 2020, @05:18PM
"That constitution, it's just a piece of paper."
that's true when/if The People won't do their duty.
(Score: 1) by fustakrakich on Thursday June 25 2020, @04:27PM
But the man can, and does
La politica e i criminali sono la stessa cosa..
(Score: 2) by wisnoskij on Friday June 26 2020, @02:22PM
Hiding/withholding evidence is illegal. Yes, the knowledge might be protected in your head until we invent mind reading, but if the court could prove that you hid evidence to a crime you would still go to prison just for that without the need to prove that you committed the first crime. Just like all of these people who refused to hand over passwords. This is spelled out in our legal system and probably has thousands of years of precedent.
(Score: 0, Offtopic) by Anonymous Coward on Thursday June 25 2020, @08:41AM (2 children)
In other news, it's also unconstitutional for cops to suffocate you to death with their knee while you're lying on the ground with hands tied behind your back and stating you can't breathe. Even if you were an aggressive murderer.
So, do you think constitutionality will help this time??
(Score: 0) by Anonymous Coward on Thursday June 25 2020, @11:39AM (1 child)
*yawn*
(Score: 0) by Anonymous Coward on Thursday June 25 2020, @06:43PM
Totally yawn worthy right? Who even cares about police murdering people, that is so yesteryear. /s
Nothing quite like assholes who dismiss massive societal and moral issues because they're tired of hearing about it.
(Score: 3, Interesting) by rigrig on Thursday June 25 2020, @12:23PM
If you claim you completely forgot the passcode[1], would revealing it later not be an admission that you lied about that?
[1] Because of all the stress from dealing with the police
No one remembers the singer.
(Score: 3, Insightful) by Tokolosh on Thursday June 25 2020, @02:19PM (3 children)
"it's helpful to analogize the situation to a pre-digital technology." No, it's not. Making bad analogies, and they are all bad, just muddies the water. Rather try to forget all analogies and stale arguments. Then, with a clear and open mind, read the Constitution. Unless you are a dictator, the answer will be clear.
(Score: 0) by Anonymous Coward on Thursday June 25 2020, @09:52PM
The Constitution is an incredibly difficult document to understand, if you are trying to understand it as a means of limiting rights/expanding government authority.
It's a spectacularly clear and concise document to understand if you are looking at it from the perspective of protecting rights/limiting government authority.
(Score: 2, Disagree) by wisnoskij on Friday June 26 2020, @02:28PM (1 child)
It has always been illegal to not cooperate with the police.
It has been illegal to not open the door to the police with a court order for you to do so. It doesn't matter what incriminating evidence is behind that door, or if that door uses a key, a hook, or COMBINATION LOCK.
Just because the evidence and door is digital, does not magically make 1000 years of precedent and laws go out the window.
(Score: 0) by Anonymous Coward on Friday June 26 2020, @03:01PM
ok slave
(Score: 0) by Anonymous Coward on Thursday June 25 2020, @05:21PM (3 children)
"it's well worth reading the entire article so as to not argue from ignorance."
uhh. no. i don't need to read anything to know that the courts that rule against the right to keep your passcodes to yourself are just seditious whores looking for any excuse to kowtow to the henchmen of the state.
(Score: 0) by Anonymous Coward on Thursday June 25 2020, @06:47PM (2 children)
"We hold these thruths to be self-evident . . ."
Apparently self-evident truths are tricky for a lot of people.
(Score: 0) by Anonymous Coward on Friday June 26 2020, @12:17AM (1 child)
The only tricky part is in finding ways to deny that they exist or that they somehow mean the opposite of what they do.
(Score: 0) by Anonymous Coward on Friday June 26 2020, @02:53AM
War is Peace
Freedom is Slavery
Ignorance is Strength
Segregation is Equality