Suspects can refuse to provide phone passcodes to police, court rules
Suspects can refuse to provide phone passcodes to police, court rules
Phone-unlocking case law is "total mess," may be ripe for Supreme Court review.
Suspects can refuse to provide phone passcodes to police, court rules::Phone-unlocking case law is "total mess," may be ripe for Supreme Court review.
Thought this was already established precedent.
Nope, each state is doing its own thing and the 5th ammendment is being trampled in a few of them. Biometrics and passwords are being forced and this is an amazing ruling for 5A advocates like myself.
SC needs to rule on it, but preferably not THIS supreme court
But biometrics have never been covered by the 5th amendment. Police collect facial photos and fingerprints and have done so for years. On top of that any DNA you unknowing leave at a police station can be used as evidence (strand of hair, spit on the rim of a water glass). I would never recommend commiting a crime but if you do and have evidence of it on your phone don't use biometrics.
This is a complicated situation, but in my opinion, probably the correct decision.
Given this is the ruling, if you do believe your phone is about to be confiscated, and you don't want its contents to be used as evidence, it might be a good idea to turn off your phone. Although the police cannot compel a password, a biometric unlock is not a password. If you turn off your phone, it will generally require a password to enable biometric unlock.
It's not complicated at all. The constitution guarantees the right that no one be compelled to testify against themselves.
It is complicated in the US because of biometrics and the wide use of contempt citations. If you “forget” your password, you can be held in contempt and jailed for up to 18 months (I missed that; last I knew it was indefinite). Biometrics and other “something you are” items can be forcibly taken (eg your fingerprints or retinal scans) with full legal backing. Your perspective, while laudable, only exists in the potential future orgs like the EFF and ACLU are fighting to create. It is very wrong today.
You don't even have to turn it off. This is why lockdown mode exists.
Not all phones have it I believe. For example, OnePlus just removed one day with an update when they switched to using a ColorOS skin.
Most phones have a way to use a button sequence force the next lock to require a PIN code. iPhone is just hitting the side button 5x for instance.
So, there's a bunch of factors going on regarding crap like this. The general argument is that the passwords are protected by the Fifth Amendment to the Constitution of the United States, the protection against testifying against yourself. While biometrics are not.
Then there's the Constitution Free Zone established by the DHS and ICE and upheld by some judges depending on how related to immigrant control your detention by law enforcement is. The Federalist Society doesn't like non-nationals, and if you can't prove you're an American in the zone (100 inland from any US border) then you get zero Constitutional protections.
Then there's the matter that law enforcement can lie to you to convince you to authorize searches. So they may insist you are required by law to open your device for them when you are not. This is why you don't cooperate without a lawyer. For now police are not allowed to give you a fake lawyer and lawyers, even public defenders, are required to adhere to a code of ethics to serve in the client's interests. But this may change in the next few years as rights in the US deteriorate.
Then police departments in Cook County (Chicago), New York City and Los Angeles have all used the $5 wrench method to force detainees to open their devices. While there are allegedly laws against this sort of thing, it doesn't slow down the precincts, and judges sometimes uphold found evidence in court the way they'll uphold coerced confessions.
So it's really better not to interact with law enforcement ever if you can avoid it, and to have a high powered defense lawyer if you can afford to establish a legal relationship with one. If you're doing something the state wouldn't like (say, operating a mutual aid program) then look into having multiple accounts on your phone, one of which is pristine and can call your grandma. Then you have the option to unlock to that account rather than the one that has your life's history (and all your CFAA violations).
This is the most American thing I've read in a long time. I lived for decades in several European countries, and this description just seems like a different planet.
this is still up in the air, but it seems to be generally breaking such that police can force you to use fingerprints or faceID to unlock your phone because fingerprints and face scans are evidence, but you can refuse to give them a passcode because a passcode is testimony. so use passcodes, not biometrics.
That's what the 'Lockdown' feature on Pixel phones does.
https://9to5google.com/2022/03/08/how-to-enable-lockdown-mode-on-pixel/
Impossible to force a fingerprint or face scan because it asks the phone to only accept passcodes.
FTA:
"The Valdez case does not involve an order to compel a suspect to unlock a device. Instead, "law enforcement asked Valdez to verbally provide his passcode," Utah justices wrote. "While these circumstances involve modern technology in a scenario that the Supreme Court has not yet addressed, we conclude that these facts present a more straightforward question that is answered by settled Fifth Amendment principles.""
So now, every cop everywhere is going to be like "Yeah, I'm going to need you to unlock your phone."
IT'S SHUT THE FUCK UP FRIDAY
I'm not discussing my day.
“Do me a favor”
That's a free trade agreement?
Oh no, I get it, the Federal Transit Administration said that. To the Forum on Tax Administration.
[Sarcasm] That everything has to be an initialism now is sooooooper convenient and cool. Imean, TEHTBAINISCAC. EWKWTM.
* in the USA.
Would be handy to have that key piece of information on the title, so I know I don't need to read the article, as it's about law in a different country.
While it’s tough to have any sympathy for an offender like this, even the worst monsters are entitled to due process and their rights as human beings. Most of the article is about disobeying the court, so that really shouldn’t be news.
It’s the twisted logic that got them there that’s really suspect. If I can paraphrase, “we don’t have enough evidence to incriminate you so you must provide that evidence. The ruling stand because the police already know you’re guilty so incriminating yourself is not self-incrimination”. Yeah, I took some liberties with it, but not as much as the court
At least the ruling limiting jail time makes sense, you can’t imprison someone for contempt longer than the court proceedings, or impanelment, or 18 months, whichever comes first. I didn’t see any implications in the article, but hopefully it either applies generally to contempt, or any contempt charge has a similar limitation. You can’t just imprison someone indefinitely for refusing to speak
Totalitarians try to use cases like this to take your rights away. Never forget how this impacts the innocent. If they can force this man to unlock his phone, they can force any innocent person to do the same. If the police think you've committed a crime, accessing your phone will never make them think you're innocent. The absolute best case scenario is that they don't find anything useful to their case. The worst case scenario is that they find your social media account where you called arson based last year, and they will use that against you.
Isn't this a human right?
Bold of you to assume human rights are respected.
I think we're sort of deciding that right now? Lots of new technologies are getting out ahead of any substantial laws that would protect human rights in these situations.
An app can clear your phone with a specific password, can't remember the name...
Pretty sure the 5th Amendment doesn’t protect against obstruction of justice if you knowingly wipe your phone while under custody
How could they know?
Just yell at them "WTF DID YOU DO? MY LAST GRANDFATHER PICTURES ARE GONE!"
And tadaaaaa
Doing it before you're under custody isn't a crime, and they also can't prevent you from deleting non-evidence but otherwise private data which you don't want to see misused (proving that is a whole other issue, though)
What if you have face unlock?
Last I heard biometrics were not protected. As in you have to unlock your phone upon request. A code, pattern or other thing you know was treated differently from using your body to unlock your phone.
In my state, police aren't allowed to use your fingerprint against you, but they can use facial recognition. It's backwards and doesn't make a ton of sense, but that's the state of affairs.
No one has ever accused criminals of being smart
Criminals are just the smallest group that interact with cops and get harassed by them.
This is the best summary I could come up with:
Criminal suspects can refuse to provide phone passcodes to police under the US Constitution's Fifth Amendment privilege against self-incrimination, according to a unanimous ruling issued today by Utah's state Supreme Court.
Police officers obtained a search warrant for the contents of Valdez's phone but couldn't crack his passcode.
At his trial, the state "elicited testimony from the detective about Valdez's refusal to provide his passcode when asked," today's ruling said.
"And during closing arguments, the State argued in rebuttal that Valdez's refusal and the resulting lack of evidence from his cell phone undermined the veracity of one of his defenses.
"While these circumstances involve modern technology in a scenario that the Supreme Court has not yet addressed, we conclude that these facts present a more straightforward question that is answered by settled Fifth Amendment principles."
"One of the major issues in the law of digital evidence investigations is how the Fifth Amendment privilege against self-incrimination applies to unlocking phones," Kerr wrote.
The original article contains 499 words, the summary contains 161 words. Saved 68%. I'm a bot and I'm open source!
What about biometrics?
That's for including jurisdiction in the headline like we've all been asking for. V helpful.
I’m sorry, but this headline is weird to me because “I forgot my passcode” if a cop ever asks me for it.