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posted by chromas on Monday November 22, @02:30AM   Printer-friendly [Skip to comment(s)]
from the wink dept.

Police Can’t Demand You Reveal Your Phone Passcode and Then Tell a Jury You Refused:

The Utah Supreme Court is the latest stop in EFF’s roving campaign to establish your Fifth Amendment right to refuse to provide your password to law enforcement. Yesterday, along with the ACLU, we filed an amicus brief in State v. Valdez, arguing that the constitutional privilege against self-incrimination prevents the police from forcing suspects to reveal the contents of their minds. That includes revealing a memorized passcode or directly entering the passcode to unlock a device.

In Valdez, the defendant was charged with kidnapping his ex-girlfriend after arranging a meeting under false pretenses. During his arrest, police found a cell phone in Valdez’s pocket that they wanted to search for evidence that he set up the meeting, but Valdez refused to tell them the passcode. Unlike many other cases raising these issues, however, the police didn’t bother seeking a court order to compel Valdez to reveal his passcode. 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.

As we write in the brief:

The State cannot compel a suspect to recall and share information that exists only in his mind. The realities of the digital age only magnify the concerns that animate the Fifth Amendment’s protections. In accordance with these principles, the Court of Appeals held that communicating a memorized passcode is testimonial, and thus the State’s use at trial of Mr. Valdez’s refusal to do so violated his privilege against self-incrimination. Despite the modern technological context, this case turns on one of the most fundamental protections in our constitutional system: an accused person’s ability to exercise his Fifth Amendment rights without having his silence used against him. The Court of Appeals’ decision below rightly rejected the State’s circumvention of this protection. This Court should uphold that decision and extend that protection to all Utahns.

Protecting these fundamental rights is only more important as we also fight to keep automated surveillance that would compromise our security and privacy off our devices. We’ll await a decision on this important issue from the Utah Supreme Court.

Put the $5 wrench away, corporal.


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  • (Score: 1, Interesting) by Anonymous Coward on Monday November 22, @03:05AM (9 children)

    by Anonymous Coward on Monday November 22, @03:05AM (#1198487)

    I'm a big fan, although in this case it really doesn't affect me...I don't have a cell phone.

    Now, if they asked for the password to log into my laptop, maybe the 5th will protect me?

    • (Score: 5, Informative) by Booga1 on Monday November 22, @03:35AM (1 child)

      by Booga1 (6333) on Monday November 22, @03:35AM (#1198492)

      I would hope so. This is basically the logical conclusion of the reason behind refusing to answer "When did you stop beating your wife?" It is all to easy to exploit.

      If the fact that you refused to answer was considered to be evidence admissible in court, the questions they ask suspects could be tailored to induce certain answers or refusals. Then, in court they could trot them out and say, "Mr. Smith. It says here that you refused to answer when asked about the date you stopped beating your wife. Is that correct?"

      When you can build a chain of these non-testamonial pieces of "evidence," you can paint almost any picture you want.

      • (Score: 4, Interesting) by tangomargarine on Tuesday November 23, @03:44PM

        by tangomargarine (667) on Tuesday November 23, @03:44PM (#1198910)

        The "cruel trilemma"
        Main article: Ex officio oath
        The "cruel trilemma"[7] was an English ecclesiastical and judicial weapon[8] developed in the first half of the 17th century, and used as a form of coercion and persecution. The format was a religious oath to tell the truth, imposed upon the accused prior to questioning. The accused, if guilty, would find themselves trapped between:

        • A breach of religious oath if they lied (taken extremely seriously in that era, a mortal sin),[7] as well as perjury;
        • Self-incrimination if they told the truth; or
        • Contempt of court if they said nothing and were silent.

        Outcry over this process led to the foundation of the right to not incriminate oneself being established in common law and was the direct precursor of the right to silence and non-self-incrimination in the Fifth Amendment to the United States Constitution.

        --
        "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
    • (Score: 5, Funny) by SomeGuy on Monday November 22, @03:59AM

      by SomeGuy (5632) on Monday November 22, @03:59AM (#1198495)

      Lawyer: "Your honor, my client does not own a smart phone."
      Judge: "GUILTY! GUILTY! GUILTY!"
      Judge: "Oh, got to run, the latest episode of Ow, My Balls! is on!"

      Don't forget to download our FREE news app/spyware! Or else!

    • (Score: 1, Interesting) by Anonymous Coward on Monday November 22, @11:30AM (5 children)

      by Anonymous Coward on Monday November 22, @11:30AM (#1198555)

      I don't have a cell phone.

      Found the obvious liar. Modern government functions frequently demand you have a cell phone to participate in civic life. To the point that our government hands out free and subsidized phones.

      • (Score: 2, Informative) by Anonymous Coward on Monday November 22, @07:35PM

        by Anonymous Coward on Monday November 22, @07:35PM (#1198640)

        I've never once needed a cell-phone to participate in civic life. Oregon has no governmental systems demanding a cell-phone.

      • (Score: 2) by edIII on Monday November 22, @07:47PM (2 children)

        by edIII (791) Subscriber Badge on Monday November 22, @07:47PM (#1198649)

        I don't have a cellphone either in that sense. I have a burner phone that I swap out regularly. My VOIP phone number points towards an Asterisk instance that then, when appropriate, patches my burner phone into the connection.

        In terms of apps, location tracking, Internet usage, etc. my burner phone has none. I use it only to communicate back and forth with my Asterisk instance, and nothing else.

        2FA with phones is fucking retarded, whether it is voice or SMS, so I use the burner phone for neither. On occasion when something absolutely demanded it, I used a burner phone for it and then threw away the burner phone afterwards. Lately, my VOIP line is fully capable of SMS communication so when I need SMS for some reason, I can still use it.

        Whatever modern government functions you are thinking of, don't exist in my neck of the woods.

        --
        Technically, lunchtime is at any moment. It's just a wave function.
        • (Score: 1, Insightful) by Anonymous Coward on Monday November 22, @08:19PM (1 child)

          by Anonymous Coward on Monday November 22, @08:19PM (#1198663)

          I love you and these comments (or you for these comments) but I find that... it is incredibly challenging to find anyone that believes me that 2FA with phones is as dumb as you say it is.

          I am afraid that convenience is the enemy, and things are secure because someone else says so, and I am weird and must have something mental going on for not accepting this secure method into the future.

          • (Score: 2) by edIII on Wednesday November 24, @07:30PM

            by edIII (791) Subscriber Badge on Wednesday November 24, @07:30PM (#1199301)

            Yeah, I know it's hard for people to forgo the convenience of 2FA on their phones. That is until they lose all their cryptocurrency holdings and have their bank accounts drained out.

            I find it funny that they ignore the news articles with Senators being shown how easy it is to hijack phones in the USA. How everybody forgot about the scandal of the SS7 protocol having no security. They don't realize if it is so easy for them to port their phone numbers between carriers in an afternoon, might it not be that easy for criminals to do it? Then you have TV shows and movies showing it done on a regular basis.

            I know of at least a few people now that are believers. Small circle of businessmen, all fairly affluent, all having diversified financial holdings. One of them, the "crypto genius", used his phone for 2FA and held his cryptocurrency in an online wallet. Whether it was targeted, or just opportunity, criminals somehow hacked his phone. I still don't know if it was a port out attack, or sim jacking, but either way the phone was pwned as they say. Since the phone was the 2FA device, and there was a plethora of financial apps on it, the financial ass raping commenced vigorously and without even the common courtesy of a reach-around.

            Today, these same small circle of businessmen listen to me as if I'm the messiah delivering information from God. Funny is all it took was for the one of them to be brutally destroyed huh? Oh, there was the belief that the authorities would straighten it all out. LOL. It's been quite some time, and the authorities haven't done dick and none of the stolen monies have been returned. I was asked if I could somehow get it all back, and I had to explain that it was extremely unlikely.

            Before, you never heard such whining when I spoke to them about hardware 2FA keys like Yubico and using them to secure their websites and businesses. It was so much harder than a simple password, and they would never get clients to go along with it. The users would rebel. After, it's like the coolest thing they've ever seen. They plug it in to the computer and press a contact and their secure password is entered into in the system. Their 2FA TOTP codes shown to them on a secured device instead of a phone. They fucking love it now.

            What you need to do is not proselytize to them with the technical details of it all, but show them the dead bodies. Show them a happy businessman plowing through blonde pussy, living on the golf course, eating in high end restaurants, smoking the dankest of dank, and then in the next minute losing their multi-million dollar home, failing on payments for their expensive Teslas, and ending up in a small apartment lamenting about how they used to have it all.

            --
            Technically, lunchtime is at any moment. It's just a wave function.
      • (Score: 0) by Anonymous Coward on Tuesday November 23, @12:45AM

        by Anonymous Coward on Tuesday November 23, @12:45AM (#1198761)

        OP here, to paraphrase an earlier reply: I've never once needed a cell-phone to participate in civic life. New York has no governmental systems demanding a cell-phone, at least not that I've come across.

        There is a cell phone in my name, but it's permanently on loan to a disabled relative who wanted a basic flip phone for occasional use. I've borrowed it back a few times when I had to coordinate/meet with someone at the end of a trip.

  • (Score: 0, Interesting) by Anonymous Coward on Monday November 22, @04:11AM (4 children)

    by Anonymous Coward on Monday November 22, @04:11AM (#1198497)

    The law says this, but the cops with guns says that.

    Guess who wins.

    • (Score: 3, Touché) by maxwell demon on Monday November 22, @08:03AM

      by maxwell demon (1608) Subscriber Badge on Monday November 22, @08:03AM (#1198529) Journal

      I think if the cop draws his gun in court, the cop will lose.

      --
      The Tao of math: The numbers you can count are not the real numbers.
    • (Score: 0) by Anonymous Coward on Monday November 22, @08:46AM (2 children)

      by Anonymous Coward on Monday November 22, @08:46AM (#1198533)

      The law wins, if you aren't an idiot. If you talk to the police because you let them scare you, you're a moron. Demand a lawyer then shut the fuck up.

      • (Score: 1, Insightful) by Anonymous Coward on Tuesday November 23, @03:32PM (1 child)

        by Anonymous Coward on Tuesday November 23, @03:32PM (#1198904)
        I get the impression that's a bit different if you're black.
        • (Score: 0) by Anonymous Coward on Wednesday November 24, @08:32AM

          by Anonymous Coward on Wednesday November 24, @08:32AM (#1199185)

          Of course, because your inferior intelligence makes you less likely to do so.

  • (Score: 5, Insightful) by bradley13 on Monday November 22, @09:16AM (5 children)

    by bradley13 (3053) Subscriber Badge on Monday November 22, @09:16AM (#1198541) Homepage Journal

    ...where the prosecution brought in all sorts of irrelevant crap (like playing video games), in an attempt to sway the jury.

    The problem with prosecutors is: they are measured by the number of people they successfully prosecute. Because that's easy to count. Measuring the number of times they "did what was right", like *not* prosecuting someone, or *not* pulling dirty tricks during a trial - that would be a lot more difficult.

    --
    Everyone is somebody else's weirdo.
    • (Score: 0) by Anonymous Coward on Monday November 22, @12:14PM

      by Anonymous Coward on Monday November 22, @12:14PM (#1198557)

      The prosecutors committed grave violations, but the defense did bring up that Grosskreutz did not unlock his phone while Rittenhouse unlocked his own phone for police voluntarily. In that case, the state had a search warrant for Grosskreutz's phone but did not use it for some strange reason.

    • (Score: 3, Insightful) by PiMuNu on Monday November 22, @04:45PM (2 children)

      by PiMuNu (3823) on Monday November 22, @04:45PM (#1198600)

      Criminal law is an adversarial process. The prosecution is supposed to be trying everything to sway the jury, as is the defence. That's the whole point.

      • (Score: 5, Insightful) by loonycyborg on Monday November 22, @06:14PM (1 child)

        by loonycyborg (6905) on Monday November 22, @06:14PM (#1198623)

        No. Prosecution is supposed to act in good faith, in interests of society. And trying to push through as many charges as possible contradicts this. Reviewing each allegation takes court time and more paperwork as well as doing irreparable societal harm if they manage to convince someone to falsely confess, so just pushing as many charges as you could potentially see as applicable is inherently inefficient. If prosecution is seen as factory for producing successful convictions at any cost then there is no way society could justify existence of such an institution.

        • (Score: 2) by Mykl on Monday November 22, @09:08PM

          by Mykl (1112) on Monday November 22, @09:08PM (#1198683)

          But surely they must've been guilty of something?

    • (Score: 2) by EvilSS on Monday November 22, @09:50PM

      by EvilSS (1456) Subscriber Badge on Monday November 22, @09:50PM (#1198696)
      The judge even smacked the prosecution in that case for doing exactly what this case is claiming: bringing up the defendant remaining silent after their arrest during the trial. Honestly the prosecution of that case was OJ levels of bad.
  • (Score: 2) by Rich on Monday November 22, @09:44AM (2 children)

    by Rich (945) on Monday November 22, @09:44AM (#1198545) Journal

    Um... Wouldn't about any information (or even the absence of such information!) about a cellphone found with a defendant being among the evidence give away whether the defendant has refused to unlock it or not? I'm curious as to what wording about a phone could satisfy the supreme court's order in a way that jurors wouldn't be able to figure it out.

    • (Score: 3, Insightful) by https on Monday November 22, @04:32PM (1 child)

      by https (5248) on Monday November 22, @04:32PM (#1198595)

      Nope.

      Even supposing unlimited access to a phone, there's the possibility that there is no actual evidence on the phone - even if the suspect were actually guilty. That ploy won't fool everyone on a jury.

      Quite a bit of information on and about a cell phone can be had by... get this... working [cue horrified gasps]. If there's enough evidence that there's even more evidence on the phone, then there's enough evidence to apply for a warrant. I'm sure the phone company and manufacturer and tindr and so on would be happy to comply with a legally issued warrant.

      Oh, is there other potential evidence only on the phone itself? Boo hoo. The entire point of the 5th is that it's the government's work, not yours, to prosecute you.

      --
      Offended and laughing about it.
      • (Score: 2) by Runaway1956 on Tuesday November 23, @03:44PM

        by Runaway1956 (2926) Subscriber Badge on Tuesday November 23, @03:44PM (#1198909) Homepage Journal

        there's the possibility that there is no actual evidence on the phone

        On the one hand, sane, rational people would not key their crimes into an electronic device, to be found later by random fool scrolling through messages and apps.

        Then again, there seem to be fewer and fewer sane, rational people in the world. People use their phones to post bowel movements to Facebook and Twitter. That is neither sane, nor rational.

        --
        👌 Play stupid games, win stupid prizes. - Kenosha Jury
  • (Score: 2) by darkfeline on Monday November 22, @09:55AM

    by darkfeline (1030) on Monday November 22, @09:55AM (#1198546) Homepage

    What a coincidence for this to land right after the Rittenhouse trial, where the judge ripped out the prosecution for bringing up Rittenhouse's silence after the incidence to influence the jury (among the countless other instances of misconduct).

    https://youtu.be/b_zwTfTNK2E?t=297 [youtu.be]

    You have a right to remain silent, and that exercising right cannot be held against you in court.

    --
    Join the SDF Public Access UNIX System today!
  • (Score: 0) by Anonymous Coward on Monday November 22, @05:02PM (1 child)

    by Anonymous Coward on Monday November 22, @05:02PM (#1198604)

    I'm not a fan of this decision. The police DID ask the defendant to unlock the phone, and the defendant DID refuse. I could imagine subtle exploits with this ruling that where the defense can allude to police incompetence for not trying to access the phone or something.

    Ideally, I think the prosecution should be able to bring this up, and the fair, rational, and balanced jury should give it the weight it deserves (read: near or exactly zero).

    In practice, though, juries are human, fallible, and easily bullied by authorities (citation: I have served on jury duty for a violent crime case). So this may the least-bad "kludge fix" to the bug.

    • (Score: 0) by Anonymous Coward on Tuesday November 23, @03:37PM

      by Anonymous Coward on Tuesday November 23, @03:37PM (#1198907)
      This decision is perfectly fine based on law and case law: https://supreme.justia.com/cases/federal/us/380/609/

      You're not a fan of the law.
  • (Score: 2, Informative) by Anonymous Coward on Monday November 22, @09:44PM

    by Anonymous Coward on Monday November 22, @09:44PM (#1198691)

    Don't Talk to the Police

    https://www.youtube.com/watch?v=d-7o9xYp7eE [youtube.com]

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