[HN Gopher] Suspects can refuse to provide phone passcodes to po...
___________________________________________________________________
Suspects can refuse to provide phone passcodes to police, court
rules
Author : thunderbong
Score : 543 points
Date : 2023-12-15 19:16 UTC (1 days ago)
(HTM) web link (arstechnica.com)
(TXT) w3m dump (arstechnica.com)
| atoav wrote:
| And this is why one shouldn't use biometrics.
| NovemberWhiskey wrote:
| Reminder to iPhone users that five fast presses of the side
| button will pop up the emergency calling page; it will also
| lock your phone in a way that requires your passcode to unlock
| even if you use biometrics.
| hanniabu wrote:
| If you spam the button and press it more than 5 times, does
| it still work?
| NovemberWhiskey wrote:
| Yes; spam away.
| davely wrote:
| Just tried it and it appears so (on an iPhone 14, at
| least).
| kingnothing wrote:
| Also power + volume down
| qingcharles wrote:
| From personal experience, this does not work if a cop puts a
| loaded gun to your head. You will not want to move.
| yencabulator wrote:
| Android: long press power, tap lockdown or power off or
| restart on screen. (I wish it didn't require touch screen!)
| mrln wrote:
| You can also disable the usage of your fingerprint to
| unlock the phone with the AdminControl App. https://f-droid
| .org/en/packages/com.davidshewitt.admincontro...
| kornhole wrote:
| Know how to disable it immediately. On Graphene and many
| Android phones, holding down the power button will reboot it
| with pin required to complete start up.
| silverpepsi wrote:
| Doesn't strike me as wise. Your phone is always on you, if you
| have a biometrics killswitch you're better off than repeatedly
| entering your password, day in and day out, in public locations
| where a highly motivated actor WILL be able to figure out your
| password with mere binoculars and two or three observations.
|
| This is why I hate when I get a 1Password prompt to reenter my
| nonbio password at inopportune times in a public place. My
| keystrokes can be secretly filmed from a distance. When I gain
| access to passwords that I copy and paste by fingerprint, the
| forcible theft of my machine puts me at near 0 risk. (My
| preferred way to login while in public.)
| croes wrote:
| >if you have a biometrics killswitch
|
| They'll take your phone, so can't trigger the killswitch.
| qingcharles wrote:
| I recommend everyone to disable biometrics and I have not used
| a passcode because of the prior vague legal landscape. Always
| used a password.
|
| Of course, from experience, this does not matter if they do
| compel you to give up the password by other means (e.g.
| threatening to harm your family).
| ziml77 wrote:
| The alternative is a PIN or password that someone could easily
| watch you enter.
| croes wrote:
| But they have to watch you enter id.
|
| Your face and fingers are always with you and it's easy to
| force you to open your phone.
|
| You can "forget" a password but not your face.
| 8organicbits wrote:
| Randomize the keyboard. Use a screen filter to reduce
| shoulder surfing.
|
| https://android.stackexchange.com/questions/27746/where-
| to-f...
| wolverine876 wrote:
| > one shouldn't use biometrics.
|
| How else do you protect against the exploit of security
| cameras, anywhere you unlock your phone, recording your
| passcode?
| unstatusthequo wrote:
| And so law enforcement just uses GreyKey[1] and problem solved
| for them.
|
| [1] https://www.magnetforensics.com/products/magnet-graykey/
| sparker72678 wrote:
| Is it still the case that this product attempts to brute-force
| unlock the phone?
| ssl232 wrote:
| How does that work? Reading between the lines it sounds like it
| is device dependent, so at least obscure Android phone users
| might be safe...?
| forgotpwd16 wrote:
| Was going do the same question. And was more curious in the
|
| >When time is critical or access is restricted, selectively
| extract specific data you need to kick-start your
| investigation
|
| part. With full-device encryption, was expecting it would've
| been all or nothing.
| yencabulator wrote:
| For what it's worth, Android no longer supports full-device
| encryption, it encrypts filesystem subtrees. For a single-
| user phone, there's not much of a difference; your "user
| files" key is obtained from the hardware secret store when
| you type your PIN.
| yencabulator wrote:
| I would assume security exploits, mostly targeting old
| unpatched versions, with some undisclosed 0days in the more
| expensive products.
|
| And against a modern Pixel/iPhone I would also expect the
| answer to how does it work to be "not so well". Consider the
| percentage of the population that uses a potato phone from
| 2018, consider the likelihood of them being the criminal in
| question, and the product starts working a lot better.
| Remember how FBI failed to decrypt the iPhone of some
| domestic terrorists: https://en.wikipedia.org/wiki/Apple%E2%8
| 0%93FBI_encryption_d...
|
| Also remember that lower-end Android hardware uses a
| different, cheaper, algorithm:
| https://en.wikipedia.org/wiki/Adiantum_(cipher)
| kornhole wrote:
| Yes this ruling will increase the revenues for companies like
| this, Celebrite, the platforms, and data brokers. Unless of
| course it is my phone. ;)
| fn-mote wrote:
| The existence of a temporary workaround does not mean the
| original right to refuse to provide your password is somehow
| bad or (perhaps more to your point) futile.
|
| Every barrier to surveillance makes it less likely. Increase
| the cost to decrease the behavior.
| ejb999 wrote:
| I can't even understand why this was even still up for debate -
| 5th amendment allows you to not incriminate yourself - being
| forced to give up your passcode is no different then being forced
| to give up any secrets you might have.
|
| Not sure why this hasn't been slapped down a long, long time ago.
| genocidicbunny wrote:
| From my reading about this case, is this not down partially to
| the specific language the court was looking at? That is, the
| warrants were compelling someone to produce the password, which
| is a form of testimony, but that a lot of times the warrant
| instead compels the device to be unlocked, which does not
| require testimony?
| ethanbond wrote:
| I mean... police can force you to open your door, your safe, or
| virtually any other container of secrets. The 5th Amendment
| _doesn 't_ give you broad protection to hide things from police
| when they have a warrant.
|
| A phone is unique thing _not_ because it contains so many
| secrets, but because you have to give _testimony_ (as opposed
| to property, like a key) in order to open it, and it 's
| impossible to open by bashing the door down or cutting it open.
| It's a technological coincidence, not a legal/philosophical
| doctrine, that makes phones secure against compulsion by law
| enforcement.
| anonymousab wrote:
| > police can force you to open your door, your safe, or
| virtually any other container of secrets.
|
| Is it different from compelling someone to enter a text
| password to unlock a vault? What if it's self-destructive
| otherwise?
|
| What happens if the password itself - or act of unlocking -
| is something self-incriminating (in form, in contents, or
| otherwise)?
| ssl232 wrote:
| > What happens if the password itself - or act of unlocking
| - is something self-incriminating (in form, in contents, or
| otherwise)?
|
| Reminds me of Ian Watkins:
| https://www.huffingtonpost.co.uk/2013/11/26/lostprophets-
| sin....
| snickerbockers wrote:
| You might be able to argue that decrypting the phone's
| filesystem is forcing you to provide them with information
| which is not relevant to the case at hand but still
| incriminating in other ways, since a phone could reasonably
| be expected to hold vast amounts of unrelated days.
| dghlsakjg wrote:
| Subtle distinction: I don't think the police, even with a
| warrant, can force you to open anything. They can use force
| to open something if you refuse (or seemingly, if they feel
| like it), but they can't make you do it.
|
| A court on the other hand, can compel you to open something.
| reactordev wrote:
| A court can compel you to open something within the warrant
| as well. In which case they _can_ force you to open
| anything.
| dghlsakjg wrote:
| Yes, but that is a court order issued by the court not
| the police.
|
| An order to unlock something coming from the cops is
| entirely different, even if they have a warrant. Warrants
| would allow them to seize a phone, but you don't have to
| provide the password.
| tantalor wrote:
| A court can compel you to do pretty much anything, within
| the law.
| zlg_codes wrote:
| The only thing we must do in this world is die. Everything
| else is up for debate.
| tantalor wrote:
| > police can force you to open your door, your safe, or
| virtually any other container of secrets
|
| No, they can't
| ethanbond wrote:
| Gotta love the insane legal opinions people come to on this
| site.
| u32480932048 wrote:
| You should see the ones written by actual lawyers!
| Manuel_D wrote:
| > I mean... police can force you to open your door, your safe
|
| Actually, the government cannot compel you to give the
| combination to a safe [1]. If it's locked with a key, not a
| keypad or combination lock, they can force you to give the
| key. The distinction is that the former is a product of the
| mind, while the latter is a physical object. Furthermore,
| what if you forgot the combination? There's no real way to
| tell if someone has forgotten the combination or is
| deliberately withholding it.
|
| https://supreme.justia.com/cases/federal/us/530/27/
| ethanbond wrote:
| Correct. The "have combination in head" is directly
| analogous to encryption key. But they are allowed to open
| the safe by other means.
| kwhitefoot wrote:
| In the UK forgetting a password is not a defence.
| Manuel_D wrote:
| TFA, and my above comment pertain to the US.
|
| The UK's laws to compel people to give up passwords seems
| to make it a _de facto_ crime to forget one 's password.
| Worse yet, it seems like it's illegal to possess random
| bytes on your devices. I wonder if the UK would change
| course if people started emailing random bytes to
| politicians and other supporters of this law, while
| giving tips to law enforcement that these individuals are
| coordinating criminal acts over encrypted communications.
| lelanthran wrote:
| I know.
|
| But ... If you're going to compell someone to give up the
| contents of their mind under threat of being found guilty
| if their mind isn't working properly, you may as well
| just do away with trial.
|
| IOW, if you're going to compell speech, just compell the
| suspect to confess; it's the same thing.
| tshaddox wrote:
| > If it's locked with a key, not a keypad or combination
| lock, they can force you to give the key. The distinction
| is that the former is a product of the mind, while the
| latter is a physical object. Furthermore, what if you
| forgot the combination?
|
| Sounds a bit silly. The _location_ of the key is "a
| product of the mind." What if you forgot the location of
| the key?
| Manuel_D wrote:
| If law enforcement has a warrant to search your safe,
| they could presumably expand that search to the rest of
| your house if you forgot where the key is. The core
| distinction is that the key is a physical object, it
| exists somewhere even if you forgot where it is. By
| comparison the combination is a product of the mind. The
| only way to retrieve it is for someone to talk to the
| police (which they have a constitutional right not to
| do).
| gaganyaan wrote:
| IANAL but you could likely successfully claim that you
| forgot where the key is, exactly because that's a product
| of the mind. If they have evidence that you do actually
| know then you might be compelled to hand it over, though.
| alkonaut wrote:
| If the government hadn't always have the possibility and
| right to break into a safe you _wouldn 't_ give up the
| combination to, then that would have been a debate for
| decades. The reason this is a debate is because they can't
| crack it.
| JoshTriplett wrote:
| > I mean... police can force you to open your door, your
| safe, or virtually any other container of secrets.
|
| No, they can't. They can force you to let _them_ try to open
| it, but they can 't force _you_ to open it for them.
|
| If you have some mechanism like "if you try to open this
| incorrectly it destroys the contents", and you intentionally
| don't disclose that with the expectation that they're going
| to try and fail and destroy the contents, you might get
| charged with destruction of evidence.
|
| (EDIT: Replies suggest that disclosure may not suffice.)
| pc86 wrote:
| For what it's worth you'll still be charged with
| destruction and/or obstruction even if you warn them.
| JoshTriplett wrote:
| Interesting, and surprising. Is there case history and
| purported rationale on that?
| ska wrote:
| Why is that surprising? The 5th isn't some sort of
| blanket gotcha, it's just there to curtail abuse.
| JoshTriplett wrote:
| There's a huge difference between "get out of the way"
| and "compelled to help".
| ska wrote:
| Right, but that doesn't cover "and I booby trapped it".
| Why wouldn't you be open to charges in that case?
| Obstruction, destruction of evidence, contempt of court -
| such mechanisms exist in part to cover such cases.
| friend_and_foe wrote:
| I think there's a case to be made that if the contents
| contain a booby trap before the warrant is issued and
| executed, they found what was inside, a booby trap was
| inside. Similar to a canary, an action that causes
| destruction of evidence deliberately after the warrant
| was issued is not the same as a system in place
| beforehand that performs the action automatically in
| every case without input from the user. This obviously
| doesn't apply to say a passcode that wipes evidence as
| that requires deliberate action, but it would apply to
| something like wiping if the wrong passcode is entered 3
| times.
| JoshTriplett wrote:
| Exactly. Intent also seems like it should matter. If your
| intent was "destroy evidence if the police comes
| knocking" that's one thing. If your intent was "have an
| extra secure safe to protect my secrets from _anyone_ who
| might steal them " and you made that decision without
| knowledge of any warrant, that seems like it ought to be
| fine.
| ska wrote:
| It's an interesting area, the 5th is actually really
| narrow (and of course other jurisdictions have something
| else). It's not obvious what can be compelled; e.g. it
| wouldn't seem like a court ordering you to defeat such a
| measure would run afoul of 5th, but maybe something else.
| u32480932048 wrote:
| I'm not sure it's directly applicable, but courts have
| repeatedly ruled that you can't booby-trap your own
| property; I'm not quite sure this applies to, say, [non-
| explosively] erasing a USB drive by entering a decoy PIN.
|
| https://www.hecklawoffices.com/blog/2020/11/its-illegal-
| for-...
| 0cf8612b2e1e wrote:
| I have been curious about when/where destruction of
| evidence takes place. Presumably during the crime, the
| perpetrator does their best to hide the evidence.
|
| Does it only become destruction after you have been
| informed the police are interested in you? What if you do
| it before a warrant is issued? What if your device will
| self destruct if a password is not entered every N days
| and you withhold that information?
| reactordev wrote:
| If they have a warrant, they can force you under threat of
| legal action if you don't comply. If they don't have a
| warrant, you can claim the 4th. If they try to get you to
| divulge the password/code/secret, you plead the 5th. If you
| let them in, well... Politely tell them they are no longer
| welcome. Please leave. If they don't comply, they are
| trespassing (unless they have a warrant, in which case none
| of the above applies and you're probably going to jail,
| wear clean underwear).
| RajT88 wrote:
| I have to wonder how much of this goes on without a
| warrant, just pressuring people into it.
|
| News articles suggests this happens a lot at the borders
| or during customs.
| wrs wrote:
| A border crossing is an entirely different realm where
| these rules do not apply.
| bubbleRefuge wrote:
| Yeah. I believe they can look in your phone.
| u32480932048 wrote:
| See also, the 100-mile "constitution free zone" in which
| around 2/3rds of the country live.
|
| https://www.yesmagazine.org/social-
| justice/2018/03/23/two-th...
| chasil wrote:
| If you save incriminating documents into an encrypted .ZIP
| file, the state cannot compel you to provide the password,
| because the password is in your mind. The contents of the
| mind cannot be demanded to incriminate self.
|
| The state can install a keylogger if they have a warrant, and
| the results of the keylogger can be admitted as evidence.
| ethanbond wrote:
| Again, a coincidence of the technology.
|
| It's "you can't be forced to open it because it requires
| you _saying_ the password," not "you can't be forced to
| open it because it contains important secrets."
|
| Right, if they can figure out a way to reveal your secrets
| without forcing you to _say_ something, they're allowed to
| do that (with warrant of course).
| pdabbadabba wrote:
| A big part of the reason is that the 5th Amendment actually
| says something substantially narrower than your paraphrase. It
| actually says that no person "shall be compelled in any
| criminal case to be a witness against himself."
|
| So there's a common argument that the 5th amendment only
| protects you against being forced to give evidentiary testimony
| against yourself. Giving up a passcode is arguably different,
| since the passcode is not (necessarily) evidence in itself, in
| the sense that it might not be introduced as evidence at trial
| to establish guilt or innocence. Rather, it is information that
| will allow law enforcement to access other non-testimonial
| evidence.
|
| I'm not arguing for this position, just providing a perspective
| on why this isn't as open-and-shut as people often think it
| should be.
| Tyr42 wrote:
| So if you password was "I killed them" maybe they won't be
| able to force you to say it...? Galaxy brain moment.
| bee_rider wrote:
| Has anyone tried some really convoluted scheme? Something
| like:
|
| I don't use a password or pin, I use a passphrase, and my
| passphrase is an instance of me confessing to some extremely
| mild crime.
| nickff wrote:
| The courts are not computers; they don't allow simple
| logical tricks to stop 'the spirit of the law'. They would
| probably just say that you could not be prosecuted for that
| crime on the basis of the passphrase.
| bee_rider wrote:
| That is annoyingly pragmatic and not fun at all.
| nickff wrote:
| If you like rules that are extremely rigid, and
| interpreted without spirit, you should look at sailboat
| racing. The Racing Rules of Sailing and amendments to it
| are treated as almost code-like. The 1988 America's Cup
| is a paradigmatic example:
| https://en.wikipedia.org/wiki/1988_America%27s_Cup
| hangonhn wrote:
| But even then lawyers still get involved. Remember when
| Larry Ellison go into competing for the America's Cup?
| https://www.theguardian.com/sport/2010/feb/07/americas-
| cup-a...
| LukeShu wrote:
| I am unfamiliar with sailboat racing, and cannot
| knowledgeably comment on whether "[the rules] are
| extremely rigid, and interpreted without spirit" and
| whether "The Racing Rules of Sailing and amendments to it
| are treated as almost-code-like".
|
| But I can say that the 1988 America's cup does not
| support either of those points.
|
| ----
|
| Background:
|
| First of all, the opinion of the appellate court is
| better written and clearer than the Wikipedia article: ht
| tps://nycourts.gov/reporter/archives/mercury_sandiego.htm
| I'm going to be quoting it a lot because it says things
| more plainly and authoritatively than I could.
|
| "The America's Cup, a silver cup trophy, is the corpus of
| a charitable trust created in the 19th century under the
| laws of New York." Such a charitable trust is governed by
| a "Deed of Gift" written by those who gave the cup to the
| trust. "[George] Schuyler executed [wrote/signed] the
| present Deed of Gift in 1887, donating the Cup to the New
| York Yacht Club".
|
| The gist of the deed is that one yacht club can challenge
| the current holder of the cup to a race to win the cup
| (the race is 10 months after the challenge is issued);
| the two clubs are free to agree to whatever rules they
| want, but if they fail to agree then the deed gives some
| fallback rules. One of the rules that the 1887 deed gave
| is that for single-mast vessels the load water-line
| length must be between 65 and 90 feet. However, "In 1956
| the New York Yacht Club obtained a court order amending
| the Deed of Gift to reduce the minimum load water-line
| length to its present 44 feet". For context, the
| _America_ , the ship for which the cup was named, was
| 89ft 10in.
|
| From 1956 until 1987 all challengers agreed to a lower
| maximum length than that 90ft limit, because even though
| longer boats were faster, they were more expensive.
|
| ----
|
| Why I don't believe that this supports your points:
|
| - Because the issue was about the Deed of Gift, not The
| Racing Rules of Sailing, this was decided by the NY
| courts, not by the International Yacht Racing Union
| (IYRU).
|
| - Because reasons ("see, e.g., Crouch v National Assn.
| For Stock Car Auto Racing, 845 F2d 397, 403; Finley & Co.
| v Kuhn, 569 F2d 527, 539") the court specifically did not
| interpret The Racing Rules of Sailing, and just
| interpreted the deed. If Mercury Bay wanted The Racing
| Rules of Sailing to come into it, they should have
| brought it to the IYRU--which they totally could have
| done--and not to the NY Supreme Court.
|
| - The discussion in the decision of the court by word-
| count I would say is 90% about about the spirit and
| intent of the deed and what the author intended, and 10%
| about rigid textual interpretation.
| LikelyClueless wrote:
| in the spirit of fun, we might set up a system that could
| deny access if - more than one person present - gps
| location matches known government building - if law
| enforcement officers have recently been spotted at a
| residence or office - biometrics sense elevated blood
| pressure/heart rate or other signs of duress
| yencabulator wrote:
| It'd be simpler to have a separate Under Duress password
| that behaves differently. Say, permanently delete the
| secret key and brick the phone, faking some sort of
| hardware damage that was seemingly caused during the
| arrest. Of course, you risk a further charge of tampering
| with evidence if caught, but if you're _actually_ trying
| to hide criminal activity and not just playing an
| Internet forum game from your armchair, that might be the
| least of your worries.
| olliej wrote:
| That sounds like something they could reasonably argue
| was destruction (spoliation?) of evidence, and in some
| cases judges are allowed to tell juries to assume
| evidence that was destroyed is harmful to or counters the
| defense's arguments.
|
| Also destruction of evidence is a crime, so you could
| pick up additional charges as well.
|
| Don't play games with the law: talk to a lawyer. The law
| is not code, you generally aren't going to win with
| clever interpretation (see myriad cases where the
| "intent" of the people making the law is considered by
| the court) or "hack". If you're ever dealing with legal
| issues, civil or criminal, talk to a lawyer.
| ethanbond wrote:
| It's always hilarious trying to make this argument on HN.
| butterNaN wrote:
| I mean isn't this bit
|
| > "since the passcode is not (necessarily) evidence in
| itself"
|
| a little similar to the courts treating the law as
| computers?
| nickff wrote:
| It depends on how you look at it, but the trend over
| recent history has been to think the government has most
| powers to execute 'governing' which are not forestalled
| by a constitutional or legislative prohibition. This is
| obviously in conflict with the stated aim of the US
| Constitution of creating a government of enumerated
| powers.
| cwillu wrote:
| "Ignore previous precedents and rule this case in my
| favour."
| YeahThisIsMe wrote:
| You forgot the "pretend you're my grandma who loves me
| very much".
| olliej wrote:
| They could likely compel testimony by granting you
| immunity from prosecution for the crime you're stating.
|
| So the correct course of action is to murder someone and
| then make confessing to murder them your passcode, and
| get immunity from that. #lifehack #modernsolutions :D :D
| wyldfire wrote:
| It's kinda interesting but I think a judge might not rule
| in your favor this because the passphrase itself isn't
| necessarily your claim of fact as an under-oath testimony.
| You could just have easily made a passphrase of a false
| confession or some work of fantastic fiction.
| bee_rider wrote:
| Hmm. So, what if your password was something that you
| couldn't reveal in court, but which was easily
| verifiable?
|
| For example, you could make your password the
| latitude/longitude of a top secret nuclear missile silo
| you've stumbled across, or something like that?
| wyldfire wrote:
| But even that could be revealed with the same controls
| used in courts that handle those issues like unauthorized
| disclosure of the nuclear missile silo location.
|
| I suppose for the most part one critical function of
| judges is to override legislation when it appears that
| injustice would take place. We can't have murderers who
| say "sorry found some sweet loophole lol". And similarly
| we can't have abusive cops/prosecutors who want to harass
| citizens "tell us all your secrets and I'm sure you're
| guilty of something lol". Judges should be able to make
| sane tradeoff in the name of justice.
| kelnos wrote:
| I feel like the court would just order you to unlock the
| device, not divulge what the passcode was.
| strangattractor wrote:
| Wow - I like that idea. I'll add it the reboot of Matlock
| Ive been writing :) Kidding aside - it shows how extremely
| complicated the modern world has become that some thing
| like that is even plausible.
| googlryas wrote:
| Your passphrase could be "I want to kill the President of
| the United States of America"
|
| USSS, please refer to:
| https://www.youtube.com/watch?v=eg3_kUaYFJA
| nvy wrote:
| Wanting to kill the president is not in and of itself a
| crime.
| bee_rider wrote:
| I think it is illegal to make a credible threat against
| certain public figures, though, or something along those
| lines, right? So could one not come up with a passphrase
| which, when typing it in private, was not criminal... but
| when stated to the court, suddenly causes the whole room
| to be involved in a conspiracy?
|
| Or, what if the passphrase includes top secret
| information?
|
| Or, what if you passphrase is a declaration that you are
| under one of those secret court warrant thinamajiggies.
| hn_acker wrote:
| > I think it is illegal to make a credible threat against
| certain public figures, though, or something along those
| lines, right?
|
| The Brandenburg v. Ohio (1969) Supreme Court case allows
| for criminalizing speech only if the speech is "directed
| to inciting or producing imminent lawless action and is
| likely to incite or produce such action" [1]. "imminent"
| means that there has to be a near-future, clear time
| window. "I will kill X president within 3 days" could be
| illegal. "I will kill X president within a year" is too
| vague. Regardless, either one could be interpreted as
| evidence of criminal intent to harm the president. (If
| you were only joking about killing the president and the
| jury believes you, then you're fine.)
|
| [1] https://en.wikipedia.org/wiki/Brandenburg_v._Ohio
| u32480932048 wrote:
| This assumes you even have the right to a jury, or that
| you've even been charged with anything, or that you have
| the right to know what the charges are if they have been
| filed.
|
| https://www.aclu.org/issues/national-
| security/detention/inde...
| nvy wrote:
| The law isn't code. It's not imperative procedure where
| you can just say the magic words and trigger an exception
| to be thrown.
|
| We have humans to apply the law and use their judgment
| for exactly this reason.
| dissident_coder wrote:
| My passphrase is "the best place to fire a mortar
| launcher at the white house would be from the roof of the
| rockefeller hewitt building because of minimal security
| and you'd have a clear line of sight to the president's
| bedroom".
| foob wrote:
| What about the less convoluted scheme of "I forgot it?"
|
| The "I do not recall" answer in high profile trials is so
| common that it's essentially become a meme. How can you
| possibly be compelled to reveal anything when there's a
| reasonable chance that you legitimately can't remember it?
| takinola wrote:
| My guess is you would be charged with obstruction of
| justice. This would be similar to you destroying evidence
| requested under subpoena. Now, as a matter of legal
| strategy, this may be a better charge to face than
| whatever is on your phone. Of course, this is not legal
| advice and YMMV.
| fluidcruft wrote:
| Probably depends on how convicing it is that you are
| carrying around a phone you cannot unlock?
| omginternets wrote:
| That's fine, until a piece of supporting evidence (photo,
| email, faceID hash or whatever) establishes that you
| interact with the device on a regular basis.
| bee_rider wrote:
| I suspect you'd actually be ordered to provide access to
| this device (which you regularly access).
|
| In particular, I don't remember the pin or password to
| some devices and accounts. They are shapes, on the pin-
| pad or keyboard. There are enough alternative ways of
| logging in (the apple face thingy, yubikey, you could
| hypothetically have devices setting up arbitrarily
| complex interlocking login processes) that I suspect the
| court would just define _what_ they want, rather than how
| they want you to do it.
|
| I could be wrong though, no actual experience here with
| the legal system at all.
| arthurofcharn wrote:
| For years, my password was: I can't, your honor, the
| password itself is a confession.
| teeray wrote:
| > since the passcode is not (necessarily) evidence in itself
|
| Unless the passcode is a decryption key, in which case the
| evidence simply does not exist without the passcode. It is
| indistinguishable from random noise. It's less like
| "unlocking a safe," and more like "instructing nanobots to
| reassemble a pile of dirt into evidence."
| photonbucket wrote:
| I can't see a judge swallowing that logic, you do have
| something similar to a metal safe's key and you've refused
| to provide it
| pdabbadabba wrote:
| This seems like a highly questionable metaphysical
| argument. The decryption key _does_ exist and, therefore,
| so does the information. The question is just who has
| access to that passcode.
| cwillu wrote:
| You might have an argument if there was no
| authentication/error-detection on the ciphertext, such that
| many keys would give valid decodings, and more so if it was
| a simple xor, such that _any_ plain text could be a valid
| decoding given the appropriate key. But that 's not a
| remotely practical cryptosystem for several reasons.
| bryanrasmussen wrote:
| but if your passcode is "1WantT0KillDarla" that might be
| problematic if the police suspect you of killing Darla!
|
| on edit: huh, what do you know, everybody had the same idea!
| ipaddr wrote:
| Not as worrisome as iJustKilledDarlaLastnightusing_ahammert
| hat_I_threwInthe_Trashat123appleblvd
| 0cf8612b2e1e wrote:
| That would be murder to type on a phone.
| bryanrasmussen wrote:
| so when you give the cops this passphrase and the can't
| type it in correctly what is the admissibility in court
| then?
| linuxftw wrote:
| I think a novel defense could be never admitting the phone is
| 'yours' in the first place. Divulging the password is
| tantamount to admitting you have access to the particular
| device in question.
|
| You might argue, well the police will have ways to prove it's
| your phone. Okay, so let them prove it, don't assist them.
| Well, then they can force you to produce your password,
| whether you admit it's your phone or not. But by divulging a
| password, you're admitting you own a phone somewhere, and
| part of your defense might be (however implausible) that you
| don't own/use a phone.
| omginternets wrote:
| The underlying issue is that giving the password is, in the
| majority of cases, equivalent to admitting that you
| own/control the device. In other words, it can easily force
| you to reveal your involvement in a crime, _i.e._ to bear
| witness against yourself.
| kelnos wrote:
| The thing I never understood about this line of reasoning, is
| that you can't be legally compelled to unlock a safe that's
| protected by a combination lock, even if presented with a
| search warrant. The police can of course attempt to break
| into the safe.
|
| I'm not sure if that bit relies on the 5th amendment, or
| something else. But how is a passcode for a phone any
| different than a combination for a safe?
| bdcravens wrote:
| Search warrants can compel you to give police access to your
| property, which can include your body (in cases of blood draw
| warrants in the case of DWI). The police can obtain a search
| warrant for your physical filing cabinet, which includes taking
| measures to access it if you won't unlock it for them.
|
| Police can easily get warrants for your phone; you just can't
| be compelled to give the code to unlock. I suspect in the
| future we'll see a different level of cooperation from phone
| makers.
| ejb999 wrote:
| yep, surprised it doesn't exist already - one password to get
| you in, one password to wipe or hide everything you want and
| then let the police in to a completely sanitized version of
| what you want them to see.
| 2OEH8eoCRo0 wrote:
| Because it's a fantastic idea to commit additional felonies
| to feel like a hackerman. Following the law is for suckers.
| spockz wrote:
| TrueCrypt and other tools had this around for ages.
| Something with nested partitions. One key unlocked the main
| partition that you are supposed to fill with something
| credible. And then another key that looks a partition even
| deeper that should contain your true secrets.
| asveikau wrote:
| Also fourth amendment covers unreasonable searches.
| 2OEH8eoCRo0 wrote:
| What is unreasonable about a warrant? Where did this
| adversarial attitude to law enforcement come from? The whole
| reason we have a rich and functioning society is thanks to
| law.
| asveikau wrote:
| > Where did this adversarial attitude to law enforcement
| come from?
|
| They screw up _very frequently_. Sometimes maliciously,
| sometimes through incompetence, sometimes both. I can 't
| convey the depth of this in a small comment box, but
| there's abundant evidence around on this topic if you care
| to look.
|
| Overall, even when you're talking about legitimately
| designated authority given to a person ... it's VERRRY easy
| for a human being to screw up and get it wrong, and it has
| huge impact over the lives of their targets. Needs to be
| approached by the authorities with extreme caution. In
| practice, probably many of them aren't aware of the weight
| of their actions, or don't care.
| 2OEH8eoCRo0 wrote:
| > They screw up very frequently
|
| Do you have a source for that? Frequently is a relative
| term. 1,000 fuck-ups can be a lot or a little depending
| on the total number of interactions we are talking about.
| buzer wrote:
| While I don't know how many interactions there has been,
| according to https://www.washingtonpost.com/investigation
| s/interactive/20... for example New York has had over
| 10000 officers involved in cases where they settled ("46%
| by officers named in multiple payments" "more than 5,000
| officers were named in two or more claims") across 10
| years. They seem to currently have 36000 officers, I
| don't know how long they stay on the job on average or
| how the numbers have fluctuated over the years, but even
| if it's just 1 year and their size hasn't changed that
| would mean about 2.8% of police force in NYC was involved
| in misconduct that resulted in settlement.
|
| These don't include number of cases where legal action
| wasn't taken or which got thrown out due to qualified
| immunity (these are somewhat related, if case is unlikely
| to get past qualified immunity it's quite unlikely legal
| action will be taken). And probably cases which actually
| went to trial as it seems to focus on settlements.
|
| Additionally there is for example
| https://www.nyclu.org/en/publications/cop-out-
| analyzing-20-y... which covers 2000-2020 misconduct
| complaints. According to it disciplinary actions were
| taken 4283 times, meaning that even if conduct was enough
| to reach settlement it doesn't necessarily mean it
| results in any actions taken against the officer.
| dataflow wrote:
| It's because the 5th Amendment is there to prevent the state
| from torturing you into confession for a crime and then using
| that as evidence against you. i.e. the point is to ensure the
| evidence is genuine and not a false confession given under
| duress, since most innocent people will say anything to stop
| pain. (This isn't obvious from the text, though if you ponder
| "why would they have included this seemingly random narrow
| right", you can deduce the explanation. But there's bigger
| historical context re: the Star Chamber if you're interested in
| looking that up.)
|
| Meaning: its point isn't to prevent access to real evidence.
| It's not an attempt to grant you privacy. It's an attempt to
| ensure justice is served correctly.
|
| This is also why you lose that right when you're granted
| immunity. The state can force you to provide testimony in that
| case.
|
| Corollary here is that it's actually quite surprising courts
| are willing to side with the accused here. It's probably only a
| matter of time before rulings come to the contrary. If you care
| about privacy as a human right, you really need another
| amendment to make it solid.
| atticora wrote:
| > If you care about privacy as a human right, you really need
| another amendment to make it solid.
|
| You would need some kind of catch-all amendments stating that
| the enumeration of certain rights shall not be construed to
| deny others, and that the powers not delegated to the feds
| are reserved to the States or to the people. You could put
| them right at the end of the original amendments for emphasis
| as a closing statement of the Constitution.
|
| But if we enacted those who would ever enforce them? The feds
| would probably treat them as if they didn't exist.
| dataflow wrote:
| > But if we enacted those who would ever enforce them? The
| feds would probably treat them as if they didn't exist.
|
| If you make them vague then it'll be easy to interpret them
| narrowly.
|
| If you make them crystal clear, courts would presumably
| enforce them, like they have in the past.
| PopePompus wrote:
| Yup, the US Constitution definitely needs a right to privacy
| amendment. It is of course spectacularly difficult to amend,
| but an amendment that ensures a right to choose abortion (and
| other reproductive privacy issues) plus strong digital
| privacy rights might garner a coalition of both pro-choice
| people and libertarians, and that could be enough to get it
| passed.
| rgblambda wrote:
| I don't see how the 5th amendment protects you against
| torture. You can choose to waive your constitutional right to
| not incriminate yourself, so surely you can also be tortured
| into waiving the same right?
| dataflow wrote:
| > I don't see how the 5th amendment protects you against
| torture. You can choose to waive your constitutional right
| to not incriminate yourself, so surely you can also be
| tortured into waiving the same right?
|
| The short response here is: How often do you see that
| happening in the US?
|
| But in any case, note that I'm explaining what it was
| intended to do and what its meanings and implications are.
| Whether it is successful in achieving its goal is beside
| the point for this conversation.
| anticensor wrote:
| Yeah, European formulations of right to silence solve that
| by having it inalienable.
| kevin_thibedeau wrote:
| There are ways to use the law to coerce the desired behavior.
| Border Patrol will do helpful things like take apart your car
| if you exercise your rights.
| omginternets wrote:
| >being forced to give up your passcode is no different then
| being forced to give up any secrets you might have.
|
| Actually, the case is even stronger than you make it out to be.
| IIRC, one of the key constitutional issues is that providing a
| password is equivalent to saying "yes, this is mine". So even
| if we disregard the _contents_ of the device, the issue is that
| you are establishing a legally relevant relationship with a
| piece of evidence.
|
| I'm recalling this from a looong time ago, when I took a
| constitutional law class, so I hope those with fresher
| knowledge not hesitate to jump in.
| mike_ivanov wrote:
| Which might imply that providing passcodes is no longer
| "necessary" to survey the content.
| croes wrote:
| Faceid isn't protected and the passkeys get unlocked by Faceid
| lesuorac wrote:
| My god have we come a long way if its even a debate if you have
| to reveal your password.
|
| Back in the day your personal belongings couldn't be used to
| incriminate you [1] since the bill of rights prohibits self-
| incrimination.
|
| [1]: https://en.wikipedia.org/wiki/Mere_evidence_rule
| croes wrote:
| Nowadays it doesn't really matter when people replace passcode
| by biometrics and passkeys.
|
| These aren't protected.
| Ridj48dhsnsh wrote:
| Won't your device holding the passkey still take passcodes to
| unlock itself?
| lxgr wrote:
| iPhones and many Android phones default to biometrics for
| both screen unlock and passkey usage these days.
| hypothesis wrote:
| > the government was becoming dissatisfied with the obstruction
| of criminal investigations that strict adherence to the rule
| engendered
|
| Also
|
| > The Court recognized that while the rejection of the mere
| evidence rule may "enlarge the area of permissible searches,"
| the protections of the 4th Amendment, like the reasonableness
| and warrant requirements, would sufficiently safeguard the
| right to privacy.
|
| So SCOTUS think that government would be satisfied with Bill of
| Rights. What if government thinks it is just too frustrating to
| follow laws?
| abfan1127 wrote:
| what do you mean, "what if?"? Its already there. There's
| plenty of examples. For instance, the FBI is involved in
| background checks for gun purchases in the US. They are
| legally required to destroy any results of said check. They
| have not (to my knowledge) ever passed an audit.
| spicybright wrote:
| You would think they be forced to stop if they consistently
| can't pass audit.
|
| That would make too much sense though.
| Geisterde wrote:
| The pentagon announced it had misplaced 2.1 trillion
| dollars on september 10, 2001. It hasnt gotten better.
| repeekad wrote:
| https://apnews.com/article/fact-check-us-government-
| trillion...
| Geisterde wrote:
| I dont know what this is supposed to imply, they
| misplaced the money, they couldnt pass audit and decades
| later they still fail every audit. The implications
| being, widespread waste fraud and abuse could have taken
| place and we have no records to hold those responsoble to
| account. In reality, of course there was widespread waste
| fraud and abuse, it seems all of our guns keep ending up
| in the hands of nazis and islamic extremists so this one
| isnt hard to figure out.
| eastbound wrote:
| Note that self-incrimination only applies to innocent people.
| If you are guilty, then you don't have this right. Or something
| like that.
|
| Hence, I understand, if they find anything illegal, then your
| password retention was hindrance to justice.
| quickthrower2 wrote:
| Does it say that in 5A?
| terminous wrote:
| *In the state of Utah
| phyzome wrote:
| I feel like this should be the next "...in mice".
| yosito wrote:
| "... in mice in the state of Utah"
| snickerbockers wrote:
| Has there ever been a court case related to encrypted data or
| secret codes without a computer being involved? If the cops get a
| warrant to tap a phone line and they hear me speaking with an
| associate using some sort of coded language (as spies and
| criminals often do on TV) can i be compelled to explain to them
| what all the little codewords actually mean?
| pc86 wrote:
| You can't be compelled but especially with spoken language it's
| going to be very easy for LE to decrypt it on their own by just
| correlating the coded language with whatever actions were taken
| later.
| lelanthran wrote:
| But that's just the point.
|
| In the past, pre-computer days, if the cops couldn't break
| your encryption you were not compelled to tell them how and
| that was their problem.
|
| Now you are compelled. I feel that that should not have
| changed.
| yttribium wrote:
| They will admit testimony by some cop to explain that "based on
| my training and experience, I believe 'going to the pool' to be
| code for 'soliciting a murder'"
| wombatpm wrote:
| But what if translate everything to LinearB or Klingon pig-
| Latin and then encrypt. Am I required to provide a Rosetta
| Stone to investigators?
| anon84873628 wrote:
| IANAL but I don't think you're required to provide anything
| to "investigators". Certainly not before consulting your
| lawyer.
|
| However I believe the _court_ could eventually order you to
| produce the Rosetta Stone, after various proceedings. At
| that point you have to decide whether you want to comply
| with the order or not, and not doing so would likely have
| negative consequences like being held in contempt.
| yencabulator wrote:
| Cryptography predates computers, so the only real question is
| has it shown up in _public_ court records or not. I 'd expect
| plenty of history in treason charges against caught spies, but
| whether the records are public or not is a different question.
|
| https://en.wikipedia.org/wiki/Book_cipher
|
| https://en.wikipedia.org/wiki/Codebook
|
| https://en.wikipedia.org/wiki/Poem_code
| pvg wrote:
| Don't know about court cases but wartime censorship prevented
| the transmission of suspected codes in some situations,
| including in the US.
| FergusArgyll wrote:
| Wartime allows for many rights to be taken away.
|
| for example: Article I, Section 9, Clause 2: The Privilege of
| the Writ of Habeas Corpus shall not be suspended, unless when
| in Cases of Rebellion or Invasion the public Safety may
| require it.
| zeroonetwothree wrote:
| I would think no, you don't have to explain it because it's
| testimonial. Of course your associate could still reveal it.
|
| But it's quite complex, see
| https://scholarship.law.edu/cgi/viewcontent.cgi?referer=&htt...
| m463 wrote:
| what's troubling is that "your associate" might be, apple.
|
| For example, when I add an account on my mac - not related to
| apple in any way - the computer will send information back to
| apple. Every time. I have cloud stuff turned off.
|
| As far as my phone - most of this stuff is not only hidden,
| but apple doesn't let me run software to know who it is
| talking to, and what is being sent.
| hutzlibu wrote:
| "can i be compelled to explain to them what all the little
| codewords actually mean"
|
| I would like to think not, as usually you cannot be made to
| compell against yourself. The famous right to silence.
|
| https://en.wikipedia.org/wiki/Right_to_silence
|
| Which was the base of this court case (and I think it is
| troublesome, that it had to be debated at all)
|
| "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"
| mrandish wrote:
| Regarding the "Right to Silence", I recently learned
| something I didn't know. While I was familiar with the right
| to remain silent after arrest to avoid self-incrimination
| (based on the Miranda ruling). There is a separate right to
| remain silent unrelated to incrimination (5th amendment) but
| rather tied to 1st amendment free speech. Of course, we're
| all familiar with free speech rights but is there a
| corresponding right to "free silence"?
|
| It turns out there is but it's not enumerated in the first
| amendment, so it's called an "implied right." It's been
| derived by the courts (including the Supreme Court) as
| logically inferred by the rights which are enumerated in the
| 1st amendment. What I found interesting is the boundaries of
| this implied right to silence are currently less well-defined
| than than the other 1st and 5th amendment rights. Apparently,
| some cases the court will be deciding this year may involve
| further fleshing out these fuzzy edges. I'm not an expert but
| as I recall, the scenarios may include things like whether
| social media networks can be compelled by a legislative
| statute to disclose (ie 'speak') their content moderation
| policies and whether public universities can enforce codes of
| conduct which may compel speech.
|
| Personally, I'm all-in on the vital necessity of robustly
| expansive free speech rights, so I'm also all-in on robust
| freedom of silence rights. I used to think I understood the
| limits of free speech in the U.S. but reading this article by
| 1st amendment expert Ken White on free speech tropes
| surprised me. Highly recommended:
| https://www.theatlantic.com/ideas/archive/2019/08/free-
| speec...
| filoeleven wrote:
| Addendum: you must explicitly invoke your 5th amendment
| right to silence when being questioned by police in order
| to prevent your silence being used against you in court.
| It's a shit ruling, but it's also current law. This
| theoretically only applies if you have answered some
| questions but remained silent on others.
|
| https://www.scotusblog.com/case-files/cases/salinas-v-
| texas/
| quickthrower2 wrote:
| So Miranda is not enough? Is "Lawyer" enough? Or is this
| pre-arrest?
| dharmab wrote:
| The magic words are "I am using my right to remain
| silent" followed by silence.
| owenmarshall wrote:
| No!
|
| In the US, case law has ended up more protective of
| people who invoke their right _to an attorney_ than those
| who merely invoke their right to remain silent.
|
| In certain cases the police can restart interrogations
| after invocation of a right to remain silent, but if you
| invoke the right to an attorney any interrogation must
| stop until your counsel is present. These exceptions are
| narrow, but "being interrogated by the police" is the
| last place to chance stumbling into one.
|
| The magic words are: "I will not answer any questions
| without a lawyer present."
| filoeleven wrote:
| Yeah. Also, the police are legally allowed to lie to you,
| but you are not legally allowed to lie to the police.
|
| I'm not interested in lying to the police, but when I
| know that they can lie to me, it's a big disincentive to
| say anything to them at all. This is a problem.
| mrandish wrote:
| As a pretty staunch civil libertarian, I agree with you
| about the asymmetry in rights. However, I'm curious about
| the statement:
|
| > "you are not legally allowed to lie to the police."
|
| I know that lying under oath in a court is perjury and in
| certain contexts some investigative agencies like the FBI
| can put you under oath and in that specific case
| materially false statements can be actionable. And I know
| that filing a false police report is against the law but
| I think that usually requires signing the report and it
| spells out that lying on the statement is perjury.
|
| But, in the scenario of a police officer just walking up
| and asking you questions on a street corner, prior to
| arresting or detaining you, is anything you say about
| anything which is later deemed to be false or misleading
| cause for arrest? Maybe it is but I'm trying think of
| what law it would be violating. I do know that civil
| libertarians say that if a police officer talks to you,
| you can ask "Am I being detained?" and if they don't
| answer "Yes" you are free to just walk away.
|
| My naive prior understanding is that things are more
| complicated and conditional than simply "Lying to a cop
| anytime, anywhere is always grounds for arrest and
| prosecution (even absent any other grounds for arrest)"
| but perhaps I was misinformed on this.
| bitwize wrote:
| If the police are feds, you can catch up to 5 years in
| the slammer for "making false statements" to them. This
| law is relatively recent (mid 90s) and was pretty much
| passed so that the FBI could nail, or twist the arms of,
| people they _think_ committed a crime but have zero
| actual evidence against.
|
| State laws about lying to police vary by state. Ask your
| lawyer.
| owenmarshall wrote:
| Popehat on 18 USC 1001, a good read:
|
| https://www.popehat.com/2009/09/22/today-in-shut-up-
| moron-te...
| sidewndr46 wrote:
| "Interfering with the lawful duties of a public servant"
|
| Note that the "lawful duties" portion is apocryphal.
| drdaeman wrote:
| > I will not answer any questions without a lawyer
| present.
|
| I'm curious. How do people get a lawyer, if they aren't
| exactly prepared for being questioned, but just somehow
| unexpectedly found themselves in some weird situation?
|
| Somehow, I doubt most common folks already have an
| established lawyer (especially not knowing what sort of
| situation they may get into - as I get it, different
| lawyers specialize on different matters) and remember
| their phone number (OP reminds me that one probably
| doesn't want to unlock any phone). Or I'm wrong? What's
| the general approach here?
| dharmab wrote:
| The state bar usually provides a service to help people
| find lawyers.
| owenmarshall wrote:
| First, invoke. Then one of two things will happen. The
| happy path is that the police can't sustain an arrest,
| and you didn't help them by talking. You'll be released,
| and you can - and absolutely should - look for a lawyer
| on your own time.
|
| Otherwise, you'll be arrested and taken to jail for
| processing. Your bail will almost always be predetermined
| by a bail schedule. For minor crimes you can post bail to
| the jail and leave within hours. Some jails even take
| credit cards. Search for a lawyer on your own after you
| are out.
|
| Otherwise the rules are varied across jurisdictions. "You
| get one call" is a TV trope" - but you can use any phone
| calls you are granted to secure an attorney. The state
| bar, as mentioned, will refer you. Call your family and
| have them secure one. Some jails have the yellow pages
| for your own selection. If you have a non-criminal
| attorney (a will, employment law, etc.) they can give you
| a referral.
| TheCleric wrote:
| Also, worse comes to worse, you can receive a free court
| provided lawyer. Though public defenders are so
| overworked, you may not see them until the day of your
| trial.
| sidewndr46 wrote:
| That might actually be a good thing if the police are
| prohibited from interrogating the individual before the
| court appearance
| sidewndr46 wrote:
| No. At least in Louisiana the police can continue to
| interrogate you after asking to speak to an attorney.
|
| https://slate.com/news-and-politics/2017/10/suspect-asks-
| for...
| filoeleven wrote:
| Pre-Miranda, according to the case law. It amounts to
| "don't talk to the police," because although the original
| case was about a murder, it now applies to every
| voluntary conversation with police. It's a really
| unfortunate precedent.
| crossroadsguy wrote:
| As in literally "uttering" something on the lines of "as
| per the 5th amendment..blah. silence.. blah.."?
|
| And or course on a recorded interview/questioning, right?
| Because if there was no recording then it's my word
| against police's, right?
|
| (I am not from US).
| wmidwestranger wrote:
| In court, you must assert your right to not testify
| against yourself.
|
| Upon arrest, you're not obligated to speak or answer
| anything.
|
| The police are not officers of the court, nor involved in
| court proceedings during their interactions with the
| public, so there is no expectation or explicit penalty
| for not answering. In court, while being questioned,
| you're compelled, under penalty of perjury, to testify in
| full and truthfully unless there is a reason you can or
| may not:
|
| > Do you solemnly (swear/affirm) that you will tell the
| truth, the whole truth, and nothing but the truth?
| filoeleven wrote:
| "Upon arrest" is doing a lot of work here. BEFORE an
| arrest, the 5th must be explicitly invoked, perhaps only
| if you have answered some other questions though. See the
| case law I linked.
|
| The 4th (unreasonable search and seizure) is generally
| clearer, but I don't know how it works online "stop and
| ID" states. IMO those laws are unconstitutional, but I
| haven't looked into it because I don't live in one.
| notfed wrote:
| > In court, while being questioned, you're compelled ...
| to testify
|
| To be clear, not if you're the defendant.
| bacheaul wrote:
| > Don't talk to the police: Regent Law Professor James
| Duane gives viewers startling reasons why they should
| always exercise their 5th Amendment rights when
| questioned by government officials.
|
| https://www.youtube.com/watch?v=d-7o9xYp7eE
| filoeleven wrote:
| See my other reply:
| https://news.ycombinator.com/item?id=38661768
|
| Yes, it means explicitly saying "I invoke my 5th
| amendment right." Generally, if you're being interviewed,
| this is surprisingly less of an issue, because you've
| already been read your rights, and the interview will be
| recorded (theoretically, they can disappear sometimes).
|
| This applies to situations BEFORE an arrest, but you may
| have already been detained. (The 4th amendment and court
| precedent has more to say about this, but it's an aside
| if you aren't subject to it.)
|
| If it's your word against the police, with no recording
| or some other overwhelming evidence, you will lose in a
| US court. Police body cams help a lot here, but it's
| still best to record every police interaction yourself.
| It's an unfortunate situation.
| geoduck14 wrote:
| >And or course on a recorded interview/questioning,
| right? Because if there was no recording then it's my
| word against police's, right?
|
| Nope. You need to express your desire to stay silent
| early in the "arrest or questioning" process with the
| police. I'm not an expert, so I don't want to pretend
| _when_ your words can be used against you, but if a cop
| hears you say something, they can quote you in court.
|
| Also, here is a fun twist. Your words can be used
| _against_ you in court, but _not for_ you. For instance:
| if the cop writes down a bunch of stuff you said while
| being arrested, and _your defense_ lawyer wants to look
| at it -they are not allowed to see it-. They can only see
| the stuff the cops use to charge you
| WaitWaitWha wrote:
| > Also, here is a fun twist. Your words can be used
| against you in court, but not for you. For instance: if
| the cop writes down a bunch of stuff you said while being
| arrested, and your defense lawyer wants to look at it
| -they are not allowed to see it-. They can only see the
| stuff the cops use to charge you
|
| This is incorrect.
|
| Withholding exculpatory evidence can get cops &
| prosecution into a lot of hot water.
|
| This is called the Brady or Brady/Giglio rule.
|
| Brady v. Maryland (373 U.S. 83 (1963)
|
| Giglio v. United States (405 U.S. 150 (1972)
| tjpnz wrote:
| >whether public universities can enforce codes of conduct
| which may compel speech.
|
| Where would such a precedent leave things in terms of codes
| of conduct and open source?
| wredue wrote:
| Or trespassing people who are no longer welcome.
|
| The idea that code of conduct can't exist is nonsense.
| The idea that it violates free speech is also nonsense,
| as it has been well settled that you don't have free
| speech on private land.
| wmidwestranger wrote:
| I can imagine codes of conduct are helping somebody and I
| wouldn't want to spoil their good times but I'm still a
| little salty that sqlite was forced to change their
| terms, based loosely on the Benedictine Order Code, so
| they could have corporate sponsors. My intuition suggests
| a large and random set of assholes has been replaced by a
| specific and goal-oriented set of assholes.
|
| I'll admit, the internet is everywhere, so every asshole
| is on the internet. I just remember before the Code of
| Conduct, there was definitely one less potential layer of
| assholes above, despite an ever present layer of assholes
| below, and there seemed to be more crazy and less
| conformist people.
|
| Would write more but I need to go yell at a cloud.
| wredue wrote:
| The thing is that most people never ever have to deal
| with codes of conduct because, as it turns out, treating
| other with respect, really isn't a difficult thing to do.
| russell_h wrote:
| It would have no effect at all.
|
| Public universities are part of the (state) government,
| so are bound by the first amendment.
|
| Open source projects are not part of the government, so
| their freedom to associate with whoever they choose (with
| some limitations implied by eg the 14th amendment, but
| nothing likely to affect currently prominent codes of
| conduct) is protected by the 1st amendment.
| mrandish wrote:
| As I said above, I am totally not an expert on any of
| this, so you should seek real answers from authoritative
| sources. However, I think I can safely clarify at least
| this much...
|
| In this context, "Public University" means an institution
| substantially run by or funded by the U.S. government.
| Only some universities are public and many others are
| private. And different rules apply because the government
| is held to constitutional standards.
|
| Conversely, "Public Domain" relates to the copyright
| status of a creative work and is entirely unrelated to
| how something is funded.
|
| Legally, a "Code of Conduct" is basically just a
| contract. In the U.S. the "Freedom of Contract" and
| "Freedom of Association" between consenting adults are,
| thankfully, pretty damn expansive. If you want to create
| a _non-government owned, run or funded_ project, club,
| cabal or coven which involves a contractual obligation
| requiring Taylor Swift tattoos and apple cider enemas, I
| 'm pretty sure consenting adults can voluntarily agree to
| that if they chose to (although it should be noted,
| enforcement of such a contract will likely be limited to
| rejecting or expelling non-complying members).
| wmidwestranger wrote:
| Don't know why you're being downvoted, the issue isn't
| the contractual obligation but the method of enforcement.
|
| If I sign a contract saying I'll take an apple cider
| enema and I don't, that doesn't automatically mean I've
| given permission to have one administered! That might
| mean I get kicked out of the contract but it doesn't mean
| that I can be forced to abide by the contract.
| mrandish wrote:
| Yeah, my humorous (but still technically valid!) example
| was probably ill-advised in this forum.
|
| Separately, although I am not a lawyer, I have decades of
| business experience which often involved working closely
| with lawyers and my circle of friends happens to include
| several attorneys, prosecutors and judges, so I'd say I
| have an unusually broad understanding of legal matters
| for a non-lawyer (especially contract, IP and business
| law). I also just find legal stuff interesting to learn
| about and I'm one of those oddballs who looks forward to
| June because I find well-written SCOTUS rulings (and
| dissents!) fun to read.
|
| Yet, I'm still surprised at the lack of even high-school
| civics-level knowledge of basic legal principles I come
| across in otherwise intelligent, well-educated
| professionals including doctors, MBAs, engineers, etc.
| It's kind of sad because the latent engineer in me finds
| the system architecture of the U.S. legal framework to be
| fascinating. Yes, it's imperfect in many ways, yet it's
| still a brilliant, iterative, collection of attempts to
| solve a 'wicked' bundle of thorny problems through
| successive approximation. Despite its flaws it still ends
| up eventually getting things pretty close to as "right"
| as they probably can be with remarkable frequency.
| hollerith wrote:
| >In this context, "Public University" means an
| institution substantially run by or funded by the U.S.
| government.
|
| No, a public university is run by one of the 50 states.
| mrandish wrote:
| I did consider that while writing and I decided any
| reader not from here and unfamiliar with our
| federal/state divide would understand "U.S. Government"
| to mean all levels of government.
|
| Pedantically, I believe there are federal universities
| such as the army, navy and air force academies. There are
| also city colleges and all of these "government
| institutions" are funded or controlled by federal, state
| and/or city taxes which causes them to fall under
| additional constitutional restrictions.
| ChrisKnott wrote:
| The thing that allows these password disclosing laws to be
| compatible with self-incrimination is that the password
| itself is not the evidence, you are being compelled to give
| up other documentary evidence that incriminates you. This is
| common. People (companies in particular) are often forced to
| give up evidence that is used against them (corporate fraud
| convictions etc).
| PrimeMcFly wrote:
| The reason it's a little different with passwords is
| passwords are considered to be equivalent to a key to a safe,
| and people could be required to hand a key over.
|
| Although it appears the matter has now been settled as of
| this ruling.
| kevincox wrote:
| Can you be compelled to hand it over? What if you lost it?
|
| It seems like with a warrant they can be allowed to crack
| into your safe, and you may prefer to let them use the key
| so that you still have a working safe at the end of it.
| PrimeMcFly wrote:
| There were different court cases in different states that
| ruled it did have to be handed over. As for whether or
| not someone genuinely lost it, I guess it would be up to
| the particulars of that case if they were believed or
| not.
|
| The UK has a rather scary law where even if you do
| genuinely lose it they just assume you are lying.
| kevincox wrote:
| The UK case is always what I assumed the main point of
| the right to remain silent was about. How can you compell
| someone to reveal something that you can't prove they
| know? Memory is fallible and it seems wrong to be
| incriminated since you forgot something or just never
| knew it in the first place.
|
| The extension of that is you can just always say "I don't
| know". So the right to remain silent is basically a
| shortcut to avoid this issue.
| gustavus wrote:
| I mean ya but the UK has basically no civil rights at
| this point, where they throw you in jail for criticizing
| politicians.
| neycoda wrote:
| Imagine if somebody took the right to remain silent to our
| current Supreme Court and they decided that nobody actually
| has the right to remain silent.
| jimt1234 wrote:
| For criminal organizations, it's common to "decipher" coded
| language to juries. And it's really not that difficult when
| drug dealers are talking about "kings" in conversations that
| have nothing to do with royalty or poker. (a "king" generally
| means a kilogram of cocaine.)
| kobayashi wrote:
| OK, but I think you missed the point of the question above.
| The point was whether a court can compel people to explain a
| secret code, and whether there should be a different
| standard, if that code involves the computer or not
| jonstewart wrote:
| But there is the essential difference -- it is not the
| algorithm, whether performed manually or by machine, it is
| the _testimony_. A defendant need not testify against
| oneself. A computer cannot testify at all. The police can
| seize the computer and have a go at cracking it, it's just
| a thing.
|
| This one seems pretty cut and dry, frankly, since they've
| asked him to provide the code, and he refused. It sounds
| like the prosecution erred significantly in making closing
| arguments about pleading the fifth being indicative of
| guilty. The more interesting question, which is not
| involved in this case, is whether a defendant can be
| compelled to provide unlocked devices to law enforcement.
| dehrmann wrote:
| Assuming the right one-time pad, a prosecutor could "prove"
| almost anything.
| crossroadsguy wrote:
| What if a coded message, or not coded at all, was interpreted
| as something that was not the case?
|
| Then is it the other legal team's responsibility to point out
| that it's bogus and refute the claim that it meant "I stole
| Jack's peanuts". Maybe by giving examples of other assumed
| ciphers that prove it actually decoded to "I can drink 5 beer
| cans in 2.5 minutes" or that it also means "Rabbits are
| actually slow" according to yet another assumed cipher?
|
| How does that work? I mean I know if it's a jury and then it
| can just come down to their individual and collective whims
| and fancy and but how does it work in general?
| giancarlostoro wrote:
| You can plea the fifth.
| heavyset_go wrote:
| You can't be compelled to testify against yourself.
| gorgoiler wrote:
| What about being compelled to either unlock and open a safe, or
| provide the code to unlock it? I too am surprised that existing
| case law in the non-tech space wasn't mentioned in the article.
|
| It would have been helpful if the Ars journalist had scored an
| interview with his expert source -- Berkeley academic Orin Kerr
| -- rather than simply re-reporting Kerr's own analysis:
|
| https://reason.com/volokh/2023/12/14/is-compelled-decryption...
| notfed wrote:
| A court or police compelling someone to open their safe would
| tautologically be for the purpose of discovering evidence of
| a crime which is exactly what the fifth amendment protects.
|
| The reason it's not a been a big deal is courts is because,
| if police have a warrant, they're going to hire their go-to
| safe driller to drill the safe open.
| ponector wrote:
| You could go to prison for refusing to provide password. Here
| is the story from 2014:
|
| A 22-year-old man has been jailed for six months after refusing
| to provide passwords to his encrypted hard-drives, the Daily
| Mail reported. He was imprisoned under a section of RIPA, a UK
| law that was originally pushed as a counter-terrorism measure,
| but which has now ballooned to cover many different aspects of
| crime--something that has got civil liberties groups worried.
|
| Christopher Wilson is suspected of attempting to break into a
| law enforcement website and "trolling" the Newcastle Police by
| fooling them with a prank phone call. However, these are not
| what he is going to prison for: he's spending time behind bars
| for not giving up his passwords.
| csdvrx wrote:
| We are lucky to have constitutional rights!
|
| In many countries, they have laws saying suspects can't refuse to
| give passcodes (or if they do, they'll be jailed)
|
| I think such laws are dangerous, as they could be used for a
| particularly evil type of attack: throw an encrypted cellphone in
| someone bag, then have them arrested for whatever wrong reason.
|
| When they can't provide the passcode, they are automatically
| guilty!
| yencabulator wrote:
| At that point, it'd be easier to throw some cocaine or an
| unregistered firearm in their bag, and that'd be a simpler
| argument in court.
| csdvrx wrote:
| > At that point, it'd be easier to throw some cocaine or an
| unregistered firearm
|
| These can be illegal depending on the country in question.
|
| Cellphones are very frequent, and not illegal (except maybe
| in North Korea?)
| yencabulator wrote:
| I read "have them arrested" as implying the dirty actor is
| the state/cops. For a dirty cop, drugs & weapons should be
| easy enough to access.
| csdvrx wrote:
| I understand your point now, but the horrible thing is
| such laws turn normal objects into dangerous object: it
| increase the risks as "less dirty than usual" bad actors
| can cause the same potential amount of damage!
| CamperBob2 wrote:
| It's not luck; we had to fight for those rights. The fight did
| not end, and never will.
| CrzyLngPwd wrote:
| So much irony.
| egberts1 wrote:
| Use a passphrase of something like "I stole a government-owned
| pen."
|
| Then you can argue that the passphrase (unlike a PIN, face ID)
| may incriminate me of a crime and that Fourth Amendment prevents
| me from doing so.
|
| Same thing with voice-based passphrase.
|
| Of course, I am not a lawyer.
| tacocataco wrote:
| "Whats the password? I cannot recall."
| u32480932048 wrote:
| Changing all my passwords to "I don't recall."
| egberts1 wrote:
| And the prosecutor may try to entice you with a limited concise
| immunity deal to excuse you of "whatever crime" that passphrase
| would accuse you of, of which you would say "is that not a
| fishing trip?" And refuse that deal.
|
| IANAL.
| qingcharles wrote:
| Note: the verdict only applies to those in Utah. Other US states
| have other rulings. Wait until there is a US Supreme Court ruling
| that affects the entire nation.
|
| Right now: do not use biometrics (can be legally forced); do not
| use numeric passcodes. Use alphanumeric password.
| sjfjsjdjwvwvc wrote:
| Why not numeric?
| croes wrote:
| Too few possibilities?
| spiderice wrote:
| How is a 6 digit pass code too few possibilities when the
| phone locks you out after like 5 missed attempts? It seems
| unrealistic to expect people to type their alphanumeric
| password every time they want to unlock their phone.
| nijave wrote:
| If these are implemented in software it'd be possible to
| brute force offline and bypass the timeout
| Gigachad wrote:
| I watched a video where they had the iphone cracked open
| and slightly modified in a way that would allow them to
| reset the storage to brute force quickly without
| timeouts.
| lxgr wrote:
| That shouldn't be (at least easily) possible on newer
| iPhones anymore. The counters are now in rollback-
| protected dedicated memory; the lockout is implemented in
| the secure enclave.
| Gigachad wrote:
| Sure, but this is all protected by dubious hardware that
| often gets cracked. A text password is protected by
| pretty sound math.
| haswell wrote:
| If I recall correctly, some early techniques to unlock
| passcode-protected phones involved bypassing the user
| interface and trying passcodes at a point in the
| execution flow prior to the code that locks out the UI.
|
| I think modern devices have addressed this in various
| ways, but it's not a good idea to rely on timed lockouts
| when it's possible that techniques exist (or could
| eventually be found) to bypass the lockout.
|
| In short, assume those lockouts are targeted at normal
| users. A sufficiently motivated actor with technical
| resources is another story.
| HenryBemis wrote:
| I am thinking that a numeric code is something that
| people can see you typing in again and again.
|
| An ex-bf/gf that hates your guts will remember that your
| pin is 1-2-3-4-5-6, because that one time your hands were
| wet and she needed to see that photo from that party and
| you told her the PIN..
|
| While if you have a word, new bf/gf will mean new word,
| and good luck knowing that.
| pseudalopex wrote:
| A numeric code may be easier to shoulder surf. Nothing
| prevents you from changing a numeric code or ensures you
| will change an alphanumeric code however.
| calvinmorrison wrote:
| Glad runescape solved this in 2004 by implemented
| randomized positions for each digit
| HideousKojima wrote:
| Heck, the keypad at my church in my hometown did this
| back in the mid to late 90's (if not sooner)
| ncallaway wrote:
| The government will clone your device hard-drive, then be
| able to attempt to unlock it on many simulated devices in
| parallel, until one unlocks.
|
| Then they can unlock the actual device.
| dathery wrote:
| I don't think this is meaningfully true for modern
| phones. The passcode is used by the phone's TPM to derive
| the actual encryption key, which never leaves the TPM.
| TPMs are designed to be impossible to retrieve the secret
| key from without being physically destroyed to prevent
| the kind of attack you describe.
|
| This is why phone cracking devices like Cellebrite rely
| on exploits in phones rather than just cloning the disk
| and trying the small number of possible passcodes.
| amlozano wrote:
| That doesn't work with iPhones, the Secure Enclave in the
| only thing that can unlock the phone, and after the
| attempt limit is exceeded, passcode-protected data is
| erased by Secure Storage.
|
| I guess if they really wanted to they could attempt to
| decap the chip and do something with a hardware attack,
| but thats difficult and dangerous.
| olliej wrote:
| Literally the point of the HSMs in phones and laptops is
| to stop that.
|
| If your device's encryption key is produced by a PBKDF
| then yes it's doable, but no actually secure system works
| like that. The way a secure system works is
|
| 1. You have an HSM ("Secure Enclave" in Apple speak,
| Trusted Computing Module in MS speak, and I can't recall
| the google/android name)
|
| 2. The HSM generates a _random_ encryption key (or family
| of keys)
|
| 3. The HSM encrypts and decrypts the data with those keys
| (the keys themselves never leaving the HSM)
|
| 4. The HSM gates access to those keys based on an attempt
| limited use of your passcode/password
|
| There were common flaws a few years ago that meant that
| you could glitch the HSMs into (essentially) not
| incrementing the attempt counters or similar but I
| haven't heard of such in a few years now (almost a decade
| now? essentially these kinds of flaws were discovered en
| mass once HSMs reached consumer hardware so more security
| researchers were able to investigate)
|
| The important thing though is the encryption key is now
| fully random, rather than derived from your password,
| which is the difference between a 128+ bit key and a
| ~40-60 bit key.
| nehal3m wrote:
| For dummies like myself, an HSM is a hardware security
| module.
| olliej wrote:
| Gah sorry, I was like "don't use a useless marketing
| name" so instead I used a useless acronym instead,
| huzzah! \o/
| ddingus wrote:
| In some cases, they can attack the password outside the
| phone / device environment by comparing hashes.
|
| At the very least, such an effort may well be able to
| reduce the problem space considerably, leaving it down to
| a few guesses on the device.
| Quillbert182 wrote:
| I can't seem to find it now, but I remember a news story
| a while back where a police agency was able to unlock an
| iPhone with a 6 digit numeric passcode in a little over a
| year, bypassing the hardware security module and time
| limits.
| qingcharles wrote:
| Prior legal rulings in the USA have been vague, but said that
| a numeric code does not require you to "testify" in that you
| don't really have to use a thought process. I'm paraphrasing,
| but basically numeric passcodes have been exempt from your
| right against self-incrimination.
| kkielhofner wrote:
| On iPhone at least you can require passcode by holding down the
| side button and either of the volume buttons for three seconds.
| Just ignore the power down/SoS screen that comes up (or tap
| cancel) - by the time you see it Face/Touch ID is already
| temporarily disabled. The iPhone will also give you a "rumble"
| confirmation so you can do it when the device is in a pocket,
| bag, etc.
|
| Obviously doesn't help if they pull an elaborate Russ Albrecht-
| style move but useful for situations where you can see them
| coming (which is likely most of them).
| jonas21 wrote:
| Reaching into your pocket or bag right when you see the
| police coming after you may not be a great idea either.
| LeoPanthera wrote:
| > On iPhone at least you can require passcode by holding down
| the side button and either of the volume buttons for three
| seconds.
|
| Caution, this may call 911 depending on your settings.
|
| Settings > Emergency SOS > Call with Hold and Release.
|
| You can also disable Face ID by pressing the power button 5
| times - which can also be a 911 shortcut, check the settings
| in the same place.
| fiddlerwoaroof wrote:
| Calling 911 requires a longer hold, typically: if you let
| go when the haptic feedback happens, you won't call 911
| thfuran wrote:
| But you may want to call an ambulance to be on the safe
| side.
| lostapathy wrote:
| > Caution, this may call 911 depending on your settings.
|
| If the police already have you, calling 911 on accident
| probably isn't a concern.
| qingcharles wrote:
| This basically happened to me when I was cuffed in the
| back of a squad car on the way to jail. I told the
| dispatcher I was being kidnapped. The cops in the front
| gave me the side-eye.
|
| Let me see if I can get the recording via FOIA...
| AnonHP wrote:
| > On iPhone at least you can require passcode by holding down
| the side button and either of the volume buttons for three
| seconds. Just ignore the power down/SoS screen that comes up
| (or tap cancel) - by the time you see it Face/Touch ID is
| already temporarily disabled.
|
| You can also press and release the power button five times
| consecutively for the same power down/SOS screen, and then
| the biometric lock gets disabled (requiring the device
| passcode).
| Jap2-0 wrote:
| On Android, hold the power button* until the power down menu
| comes up, then press "lockdown".
|
| * This may vary by phone, but I'm not sure.
| kelnos wrote:
| It still very much annoys me that this requires interacting
| with the touch screen to accomplish.
| thallium205 wrote:
| You will not have time to reach into your pocket when getting
| arrested. Just turn the biometrics off.
| yreg wrote:
| I would likely have the phone in my hand already.
| olliej wrote:
| Disabling biometrics can be done trivially quickly, and means
| you don't have enter your passcode in any observable way.
| qingcharles wrote:
| I promise you, from experience, it is not quick enough.
| olliej wrote:
| I know, also from experience because it was something I
| specifically tested, I can do this in the time I take to
| pick up the device, or take it out of my pocket.
|
| Unless your concern is your device is out of your control
| when it is seized, in which case you could mitigate your
| concern by locking it when it will be out of your control,
| or if you really want to just never enable biometric
| authentication. Of course that puts you back in the bucket
| of every time you unlock your device it can be observed.
| qingcharles wrote:
| How are you going to touch the phone when there is a gun
| to your head and you have been told not to move an inch
| or you will be shot?
| rahimnathwani wrote:
| Excellent coverage about this here:
| https://reason.com/volokh/2023/12/14/is-compelled-decryption...
|
| The author thinks _this_ could be the case that goes to SCOTUS.
| yosito wrote:
| I'd be willing to bet that even if it becomes federal law, it
| won't apply inside of airports. Not to mention that most of the
| world is not the US.
| qingcharles wrote:
| Well, borders in the USA have a special exemption to the 4th
| Amendment, so take everything with a grain of salt if you are
| entering or exiting the USA.
| pphysch wrote:
| If LEO have a search warrant and find a locked safe in your house
| (that may include private data or evidence of crime), are they
| allowed to crack it or order you to open it?
|
| Why would a computer device be any different?
| sgjohnson wrote:
| They are allowed to crack it. They can't order you to open it.
|
| Same goes for a computer device. Go ahead, crack it.
| croes wrote:
| And know imagine you use passkeys secured by Faceid or other
| biometric procedures.
| olliej wrote:
| as opposed to a password manager? Passkeys solve _many_
| problems and the weaknesses all degrade to "password manager".
| croes wrote:
| Passkeys take the passwords out of the user's hand. That's
| good for some users but bad for all, especially at the moment
| with missing migration possibilities between iOS and Android.
|
| Like all the rest of the computer stuff, it stops being yours
| and becomes theirs and you are only allowed to use it.
| entriesfull wrote:
| Bull crap. I personally was on probation as a juvenile for a
| petty offense. One day the PO asks my parents to take me to talk
| with her to see how I'm doing. She then asked me for a facebook
| password and I refused. After which she put me in a court house
| cell for 8 hours and made me miss an entire day of school.
|
| I eventually gave this psychopath my password because I had
| nothing incriminating and I hadn't eaten all day.
|
| Nice to know USA is literally Nazi Germany but better at hiding
| their dirty secrets.
| wolverine876 wrote:
| Thanks for sharing that. What a valuable perspective; most
| people on HN are talking with no experience.
|
| How old were you?
|
| (The last line usually wouldn't be ok on HN, but I can imagine
| your anger.)
| refurb wrote:
| If you're on probation you lose certain rights as a condition
| of your release.
| walterbell wrote:
| Avoid phones which flash plaintext password characters onscreen
| during typing, visible to any nearby video camera for
| record/replay.
| LoganDark wrote:
| Could police ever compel me to provide the passcode or even an
| unlocked device if I have a dissociative disorder that can't even
| guarantee my own knowledge of the passcode? It's entirely
| possible for me to lose access to it without being able to help
| myself and it'd be a real shame if they thought I was lying then.
| Fun thought experiment, though.
| autoexec wrote:
| You don't even need a disorder for that. Anyone could forget a
| passcode. They can't prove that you remember it, or that you
| have any idea what it is, but what they can do is lock you in a
| jail cell anyway. If your lucky you might get out after only
| several years https://arstechnica.com/tech-policy/2020/02/man-
| who-refused-...
| LoganDark wrote:
| Sure I don't need the disorder to forget things, but the
| disorder makes it more likely to happen.
| autoexec wrote:
| I'd argue that people are far more likely to forget a
| password/passcode than to have dissociative personality
| disorder and then have only one personality be aware of the
| password and then also be cured of the disorder/personality
| or otherwise be unable to ever manifest that personality to
| allow for questioning by police.
|
| I think in that case it'd probably be treated more or less
| the same. Jailed for months/years for contempt of court,
| either locked up in a cell or a hospital with court ordered
| mental health treatment depending on if the judge believes
| the person actually has the disorder or not.
| LoganDark wrote:
| An estimated 1% or so of the population is suspected to
| have DID, and memory gaps don't exclusively work like
| "some identity knows the password but it's not me". I can
| totally forget things without someone else in the system
| still knowing them. Nobody really has to hold the memory
| for it to become inaccessible.
| kelnos wrote:
| Once when I was running CyanogenMod (wow, long time ago) on
| my Android phone, I made use of the feature to set my
| device's storage encryption password to something different
| from my screen unlock code.
|
| And then I proceeded to not reboot my phone for months, and
| forget what the encryption password was. I was very surprised
| upon next reboot to find I couldn't get into my phone.
| Fortunately I remembered it, but it took me a good day or so
| to figure it out.
|
| So yes, it's perfectly possible to forget a passcode. But the
| authorities, of course, may not believe you've forgotten it.
| Which is why it's so important that it should be entirely
| legal to just refuse to provide it in the first place.
| olliej wrote:
| If you have a dissociative disorder, then you may just be shot
| as that is the US police response to most kinds of mental
| distress, so then from their pointer of view they've solved the
| problem.
| LoganDark wrote:
| Dissociative identity disorder isn't necessarily mental
| distress. Would be pretty irrational to shoot someone over
| not being able to unlock their phone.
| olliej wrote:
| We're talking about the US, not places with competent law
| enforcement.
| buryat wrote:
| reality is more like https://xkcd.com/538/
| sampli wrote:
| In the UK you have to hand your password over on command
| jmprspret wrote:
| Same in a number of Australian states. You can face up to 10yrs
| jail time if you don't give it up iirc
| hutzlibu wrote:
| Isn't that a violation of the right to silence?
|
| "Australia has no constitutional protection for the right to
| silence,[4] but it is broadly recognized by State and Federal
| Crimes Acts and Codes and is regarded by the courts as an
| important common law right and a part of the privilege
| against self-incrimination"
|
| https://en.wikipedia.org/wiki/Right_to_silence_in_Australia
| jay-barronville wrote:
| I'm an American, so this doesn't apply to me, but the idea
| that someone could be forced, by their government, to self-
| incriminate is absurd to me.
| AndrewKemendo wrote:
| I'm an American. Americans are forced by their government
| to self-incriminate all the time and are sitting in jail
| for it.
|
| Here's a computer to explain it to you: https://chat.openai
| .com/share/532f399a-80d4-4973-9508-67f0f0...
|
| And the references used. I even checked them myself:
|
| https://law.justia.com/cases/federal/appellate-
| courts/ca4/21...
|
| https://law.justia.com/cases/federal/appellate-
| courts/ca4/22...
|
| This one in particular is great because apparently the 5th
| amendment doesn't apply if you're not an English speaker
| and don't understand the extreme subtleties of the law,
| such that you can be compelled to incriminate
|
| "To qualify for the Fifth Amendment privilege, a
| communication must be testimonial, incriminating, and
| compelled." The Fifth Amendment privilege against self-
| incrimination thus only protects a defendant from being
| compelled to provide "testimonial" evidence, meaning that
| the communication "must itself, explicitly or implicitly,
| relate a factual assertion or disclose information."
| Indeed, the Supreme Court has explicitly distinguished
| between "the use of compulsion to extort communications
| from a defendant" and merely "compelling a person to engage
| in conduct that may be incriminating," such as providing
| samples of one's voice, handwriting, or physical
| appearance, all of which are constitutionally permissible."
|
| Note, these are only the ones that were _appealed._
|
| Land of the free baby
| DiscourseFan wrote:
| None of this is "forced." If you are being interrogated
| by police without a lawyer, its because you are either a)
| and idiot, or b) not well educated about the American
| legal system (which means you probably received a poor
| education or you're a migrant). What this decision opens
| up is different from what you cited: here, we are not
| dealing with physical compulsion to speak or write or
| produce any kind of communication, which is severely
| delimited with the presence of a lawyer (or even the
| mention of one to the police), we are dealing with
| police, who've already seized some object which
| _contains_ personal communication (much like safe), and
| the legal right to remain silent on the code to unlock
| it. Now if, for previous physical objects which would
| contain communications that were locked with a code,
| there was case precedence where that code was legally
| demanded by police, and granted by a court, then you
| might have an argument.
| AndrewKemendo wrote:
| Let me put a finer point on it:
|
| It does not matter what the constitution says police are
| going to do whatever they want no matter what, and case
| law proves that that's exactly what they will, and will
| continue to do
|
| You seem to be continuing to operate under the assumption
| that America works underneath the rule of law universally
| applied. It doesn't, it never has.
|
| As you so clearly reinforced my original point, the only
| way that you can actually have those rights apply to you
| is by either being smart or rich, and most people are
| neither
| kelnos wrote:
| I think you're being overly harsh toward people who might
| speak to police without realizing the implications.
| Getting arrested or even detained is a high-stress
| experience, and judgment and decision-making skills
| suffer in those types of situations.
|
| Beyond that, cops are trained to manipulate people into
| believing that either a) they are required to talk
| (despite being read their Miranda rights), or b) that
| talking actually will work out better for them in the
| long run than staying silent.
| jay-barronville wrote:
| To be clear, I was responding to the commentary about the
| UK and Australia.
|
| That said, even though America doesn't have a perfect
| record on this, our Fifth Amendment rights are generally
| effective at protecting us from forced self-
| incrimination. We at least have the luxury of the Supreme
| Court that may hear and adjudicate our cases if our Fifth
| Amendment rights are violated.
|
| > Americans are forced by their government to self-
| incriminate all the time and are sitting in jail for it.
|
| "all the time" - Can you please quantify that? I
| genuinely don't believe it happens enough to justify your
| assertion. (I'd love to be corrected with some data if
| I'm wrong.)
|
| All in all, I think it's a mistake to expect a perfect
| system. Compared to the rest of the world, our
| Constitution is a massive luxury; Americans are beyond
| lucky. I can either focus on the fact that the overall
| system isn't perfect or I can appreciate--i.e., not take
| for granted--the fact that we even have the codified set
| of rights that we do.
|
| P.S. I personally know folks from Third World countries
| whose family members were executed for having the "wrong"
| opinion. We really do take a lot for granted here in
| America.
| AndrewKemendo wrote:
| No, you simply aren't seeing it because you aren't
| exposed to communities who are regularly just getting
| hammered by police.
|
| There is no "evidence" because it's not on the record.
| It's a lived experience by poor people. I don't know if
| you've noticed but police kill a lot of innocent people
| that looks precisely like executing somebody for making
| the wrong decision, so I'm not sure how you're not seeing
| it but it seems like you're intentionally not seeing it.
|
| It's examples like my friend who did 10 months in county
| jail because he pissed hot during a two month probation
| on a drug charge related to a friend that he was driving
| the car with. This is an every day experience for me as a
| teenager. I was pulled over regularly and padded down and
| it was only because I had a white mom who would come
| bitch at the police that I didn't have a record.
|
| There is an entire country within America that has no
| access to constitutional rights. I suggest you just look
| up a little bit of black history and you'll be informed
| on some of this.
| jay-barronville wrote:
| > No, you simply aren't seeing it because you aren't
| exposed to communities who are regularly just getting
| hammered by police.
|
| > [...]
|
| > There is an entire country within America that has no
| access to constitutional rights. I suggest you just look
| up a little bit of black history and you'll be informed
| on some of this.
|
| I really hate having to bring up my background and race,
| but I really have to here: I'm literally a black man who
| grew up in inner city America who also used to be a
| leftist activist years ago (one of my primary focuses
| used to be "police brutality"). This is absolutely not a
| foreign topic to me. I've personally had a number of bad
| encounters with the police going back all the way to my
| pre-teen years. I find it interesting that you simply
| assumed, based on my perspective, that I'm somehow just
| oblivious. Regardless, none of that changes anything I've
| said.
|
| Also, your claim that a certain segment of Americans,
| such as poor black folks, have "no access to
| constitutional rights" is simply false. A more reasonable
| argument would be that a certain segment of Americans
| lack the resources to properly defend their
| Constitutional rights, but those rights haven't gone
| anywhere.
| AndrewKemendo wrote:
| So what gives? How can you question the insanity given
| your experience?
|
| I got put on the hood for nothing for years before going
| into the military and whitening up.
| actionfromafar wrote:
| What if they present a phone you have never seen before and
| claim it's yours. Or if you truly don't know your own code
| for some reason.
| semanticist wrote:
| It's important to note that it's not just 'on command', it's on
| issuing a Section 49 order under the RIP Act, which has
| conditions and doesn't like automatically result in you being
| locked up if you refuse (the police have to apply to a court to
| enforce it, and you have a chance to defend yourself).
|
| This law firm's site has a good summary:
| https://www.reeds.co.uk/insight/section-49-ripa-2000-trendin...
|
| The reason I say it's important to note this is that the UK
| police absolutely will over represent these powers to bully you
| into voluntarily handing over unlock codes and passwords.
| Unless there's a S49 notice, they're just asking and you have
| every right to say 'no thanks', and even if they do issue one
| you can require your day in court to force the issue.
| masfuerte wrote:
| If they stop you on entry to the UK they can compel you to
| unlock any devices you are carrying. They are entitled to
| whatever data they find on the devices but they are not
| allowed to use the credentials on the devices to access
| remote services. However, the secret services have a long
| track record of ignoring the rules so I wouldn't trust them
| not to.
| ckdarby wrote:
| I always wonder what happens if you unlock with a code that
| switched profiles and encrypted the other profile.
| TacticalCoder wrote:
| That'd be some form of "plausible deniability" (although the
| term has a lot of different meanings depending on the context).
|
| I know it exists for certain cryptocurrencies hardware wallets:
| they can be setup (but are not required to) so that one PIN
| unlocks the real wallet and another PIN unlocks a decoy wallet,
| which only has some coins.
|
| P.S: people are probably going to point out the $5 wrench
| attack though
| fastball wrote:
| Isn't that the benefit of such a scheme? You ask for my
| password, I say no, you hit me with a $5 wrench, I say no.
| You keep hitting me, I input the decoy password and you think
| that is all the crypto (or content or whatever) I have.
|
| $5 wrench attack works on known unknowns, but not well on
| unknown unknowns.
| ljm wrote:
| If your adversary is the US intelligence machine then
| you're already presumed to be guilty and a fail safe on
| your phone will achieve nothing.
|
| People were sent to Guantanamo bay for much less.
| tomcam wrote:
| You're so cynical. And by cynical, I mean absolutely
| right.
| plorg wrote:
| If they threaten to beat you with a $5 wrench and you
| refuse and refuse and refuse and eventually cave and unlock
| the wallet with $10 of Bitcoin they're going to hit you
| with a wrench because you wouldn't resist so hard over so
| little and you're obviously trying to be clever.
| true_religion wrote:
| That's why you don't have a decoy profile, but a real
| alternative. Maybe they can then steal 30% of your wealth
| and not all of it.
| pavel_lishin wrote:
| As long as a bad actor is aware of the possibility of decoy
| passwords, they have no incentive to stop hitting you with
| that $5 wrench no matter what you say.
| V__ wrote:
| I thought about that and could see two possible problems: What
| about notifications on the lock screen, how to plausibly handle
| those with a fake/2nd profile? Could that be seen as willfully
| misleading or hiding evidence?
| Uehreka wrote:
| Generally speaking, if you non-cooperate with the police that's
| one class of offense, but if you lie to the police (that's what
| this would be seen as) and they catch you it's a whole 'nother
| level of offense.
|
| In general, if you're thinking about interactions with the
| police and you have an idea that feels "clever", it is a bad
| idea.
| cynicalsecurity wrote:
| You have the right to remain silent. Non-cooperation is not
| an offence.
| nabakin wrote:
| Resisting arrest is both non-cooperation and an offense so
| idk where you're getting that from.
| jiminymcmoogley wrote:
| you can be non-cooperative without meeting the bar for
| resisting arrest though, for instance if you refuse to
| incriminate yourself
| filoeleven wrote:
| People are consistently arrested and/or charged for
| resisting arrest for not identifying themselves in states
| that do not have "stop and ID" laws.
|
| Even if you know to the letter what your state law
| requires, the police often don't. If you take the arrest
| and sit in jail for 2-12 hours, you can fight it later in
| court. Somehow, this is a luxury for most people in the
| US.
| spiritplumber wrote:
| "You were rude to me earlier, so I don't want to talk to
| you" may get you beaten up but won't get you in further
| legal trouble.
|
| If it comes up at trial, you simply explain that the
| officer was rude to you, so you didn't want to talk to
| them, which caused them to be even more rude to you,
| which confirmed your decision to not talk to them.
| nabakin wrote:
| For sure. I thought the parent commenter wasn't
| considering cases like resisting arrest in their
| statement though
| DiscourseFan wrote:
| I think you're right, but generally speaking the 5th
| amendment gives wide rights, so in any interaction with
| the police in America one should always keep their mouth
| shut, and if pressed say that you won't speak without a
| lawyer. They literally say: "Anything you say can and
| will be used against you in a court of law." That is not
| an exaggeration.
|
| It is very difficult to prosecute someone for a crime if
| they stay silent during the legal process, it's why the
| police are hyper-aggressive, they are trying to catch any
| idiot who will say anything that will get them arrested
| and charged, so they can report to the municipality,
| county (or state or whatever) that they have achieved x,
| y, z rates of charges, solved crimes etc., in order to
| secure better funding (meaning better salaries, benefits,
| pensions, and toys to terrorize you with).
| fallinditch wrote:
| Here's a recording of a law school lecture - a compelling
| argument for why you should never talk to the police
| https://youtu.be/d-7o9xYp7eE
| nabakin wrote:
| For sure, I agree with everything you're saying, but the
| parent commenter was saying all non-cooperation is
| allowed which isn't true. I don't think they considered
| the case of resisting arrest or other similar cases.
| icelancer wrote:
| Remaining silent and deceiving law enforcement officers are
| very different things.
| true_religion wrote:
| I have two kitchens in my house. If a police officer asks
| me to take them to the kitchen, and I take them to the
| annex kitchen the am I a liar?
|
| You unlock a phone or a computer and sign into one
| profile and not another. Are you lying?
| quickthrower2 wrote:
| What if Kitchen 1 has a PIR sensor that when tripped
| flushes all the coke down the toilet?
| icelancer wrote:
| That's an act of commission. You should simply do
| nothing, unlock nothing, and say nothing. Wait for an
| attorney.
|
| It may not be difficult for the prosecutor to point out
| that you "unlocked" your phone into a mode you never use
| and in fact specifically use to deceive law enforcement.
|
| Much simpler and safer to do absolutely nothing. Plus,
| you don't know for sure if that secondary mode being
| unlocked can enable third-party tools to break into the
| primary profile.
| ineptech wrote:
| It's legal to lie to the police under questioning in most
| circumstances, i.e. "I didn't rob that guy" if you robbed
| that guy. The big exceptions are falsely identifying yourself
| and lying while reporting a crime.
|
| You might be thinking of 18 USC 1001 which makes it a felony
| to lie to a federal agent, and is extremely broad (both in
| terms of of what constitutes a lie and who counts as a
| federal agent).
| filoeleven wrote:
| > lying while reporting a crime
|
| Seems to me like there ought to be some kind of 14th
| Amendment "equal protection" cases presented to the court
| about the failure of police forces to dismiss false police
| reports.
|
| If I filed a police report saying "X threatened me on my
| property" and it wasn't true, I'd be prosecuted for a false
| report. Yet there are hundreds of instances of state and
| federal employees filing the same kind of false reports,
| yet nothing is done about it.
| stainablesteel wrote:
| but if they say "unlock your phone" rather than "unlock the
| main profile of your phone", its not like you're
| uncooperative. you've technically unlocked it.
| dotancohen wrote:
| I had this argument with my then-13 year old daughter. I
| had forbidden her from using "the phone". She accepted the
| punishment.
|
| She then proceeded on another device to show me that in no
| place on the official Samsung website is the device
| referred to as "a phone". The device is always referred to
| as "a smartphone" and in one place the telephone
| communication application is referred to as "the phone". I
| conceded that she made a good case and that the punishment
| therefore applied to the telephone communication
| application only.
|
| Does the alternative password enable your phone book and
| phone history? If so, then yes you have unlocked the phone.
| If not, then you have unlocked "a phone" but not "the
| phone".
| vore wrote:
| I think unfortunately in almost all cases the spirit of
| the law is more important than the word of the law, and
| most courts frown upon this kind of chicanery. I think
| this encourages her to "well, actually" people more,
| which nobody likes being on the receiving end of :-)
| dotancohen wrote:
| > I think unfortunately in almost all cases the spirit of
| the law is more important than the word of the law, and
| most courts frown upon this kind of chicanery.
|
| I was under the impression that the word of the law is
| preferred. If anybody here has experience, in any
| jurisdiction, I would love to know more.
| > I think this encourages her to "well, actually" people
| more, which nobody likes being on the receiving end of
| :-)
|
| Well, actually, I do want to encourage her to defend
| herself by all possible means, especially to be able to
| challenge the law :-)
| stainablesteel wrote:
| in the original context though, you're not dealing with
| the law but an "order". you were "ordered" by some police
| officer to do something that you can't refuse.
| knocte wrote:
| How are you lying to the police by unlocking a different
| profile of your phone? So long as the police doesn't say "oh,
| unlock this $specific profile of your phone please", you
| could have different profiles for different purposes (e.g.
| different set of apps installed, like one profile for work
| and another for personal settings).
| runlevel1 wrote:
| Don't get caught doing it.
|
| I seem to recall that being one of the few times in a criminal
| trial where a jury can be instructed that they may make an
| adverse inference. (IANAL)
| wolverine876 wrote:
| If you feed a bunch of a target's personal info into an LLM,
| would it guess their password more quickly than a human? What
| about an LLM trained specifically for the task?
|
| It could be the end of non-random passwords.
| BriggyDwiggs42 wrote:
| Doubt it, they arent magic
| bryan0 wrote:
| Am I missing something or is the headline (and most of the HN
| commentary) missing the point of this ruling? The ruling is not
| about whether you have the right to refuse to give your passcode
| (of course you have that right). Rather the ruling is about
| whether your refusal to give your passcode can be used against
| you at trial as incriminating evidence (?!)
|
| > A court of appeals reversed the conviction, agreeing "with
| Valdez that he had a right under the Fifth Amendment to the
| United States Constitution to refuse to provide his passcode, and
| that the State violated that right when it used his refusal
| against him at trial." The Utah Supreme Court affirmed the court
| of appeals ruling.
|
| This seems like a much more subtle question.
| SuperNinKenDo wrote:
| In terms of the Fifth Amendment, it would seem that those
| issues are identical. Your right to silence means that your
| refusal to answer a question, provide interviews, etc, can't be
| brought up as evidence of your guilt.
| bryan0 wrote:
| Yeah thinking about it more I think this makes sense. It
| seems like it could be brought up in court though? Just not
| used as "evidence" again you?
| Terr_ wrote:
| IANAL, but I imagine that would ideally go something like
| this:
|
| Prosecution: "Mr. Defendant, when the police asked you to
| unlock your phone, what did you tell them?"
|
| Defense: "Objection, prejudicial and irrelevant. Fifth-
| Amendment."
|
| Judge: "Objection sustained--move on to the next question."
| jonstewart wrote:
| Yes, but from TFA it sounds like the prosecution did this
| in closing arguments, when they're not talking to a
| witness. Objections are typically not made by opposing
| sides in closing arguments (though possible). IANAL and
| don't know precisely under which circumstances the judge
| should intervene in closing arguments. But implying that
| pleading the fifth is evidence of guilt is kinda
| "Prodecutorial No-Nos 101" and it's not surprising it was
| overturned on appeal. What's more surprising is that the
| prosecution then went to the state Supreme Court.
| vilhelm_s wrote:
| It's not "of course", if there is no 5th amendment protection
| then you can be forced to give the passcode. The New Jersey
| case the article mentions is about exactly that.
| [https://law.justia.com/cases/new-jersey/supreme-
| court/2020/a...]
| bryan0 wrote:
| Ok thanks for the info. That case seems to be about if you
| can be charged with a crime if you refuse to reveal your
| password with a search warrant. While the case for this
| article seems to be about whether refusing to give a passcode
| when questioned by police can be used in court against you.
|
| My "of course" comment above was about refusing police
| questioning (Miranda rights). not refusing a search warrant.
| That does seem like a much trickier issue.
|
| Edit: added the clarification about Miranda rights
| vilhelm_s wrote:
| The case for this article is also about a search warrant.
|
| > At some point thereafter, the officers obtained a search
| warrant for the contents of Valdez's phone. But they were
| unable to access the phone's contents because they could
| not crack his passcode. So a detective approached Valdez,
| informed him that he had a warrant for the contents of the
| cell phone, and asked Valdez to provide his passcode.
| Valdez refused. Without the passcode, the police were never
| able to unlock the phone to search its contents
| kelnos wrote:
| I agree with your analysis here, but I don't think it's settled
| case law that you can't be compelled to provide your passcode,
| that refusing to do so is covered under the 5th amendment.
|
| People have been sent to jail on contempt charges for refusing
| to provide their password, before even getting to the point of
| going on trial for whatever they're accused of.
| cynicalsecurity wrote:
| Never store anything incriminating on your phone. How hard can it
| be. Your phone is never your friend.
|
| A compact Linux device without any biometrics, telemetry, public
| clouds and corporate spying software is probably what you could
| be looking for.
| madeofpalk wrote:
| How do i know if it's incriminating or not?
| nagonago wrote:
| Unfortunately the encrypted phone market is a total mess. The
| Darknet Diaries podcast has a good episode about this.
| https://darknetdiaries.com/episode/105/
| rendaw wrote:
| Are you arguing against the ruling? Is this not a good move
| away from what you've described?
| jmbwell wrote:
| Nothing has to be on your phone for a cop to demand its
| contents. At which point, if they want to find something
| incriminating, rest assured they will.
|
| "Nothing to fear if you're not doing anything wrong" is a
| fallacy that serves only the cops
| SCAQTony wrote:
| It seems so evident that the 5th is in play. I wonder if this is
| a test case to take advantage of a particularly conservative
| Supreme Court.
| wmidwestranger wrote:
| I'd go so far as to say they never needed permission to refuse,
| so thanks for confirming the traditional position that coercion
| is not a valid means of confession.
| thaumasiotes wrote:
| Orin Kerr noted, commenting on this case, that it's restricted
| to the question of whether suspects can be compelled to divulge
| their passwords, even though the more common legal question is
| whether suspects can be compelled to unlock their phone.
| willsoon wrote:
| Well, I am not in the USA, but I think that in the whole of the
| West you cannot incriminate yourself. But thank you, Your Honour.
| tasn wrote:
| Unfortunately that's not the case. In the UK you can be forced
| to decrypt data and provide passwords.
|
| https://en.m.wikipedia.org/wiki/Key_disclosure_law#United_Ki...
| smcin wrote:
| What, "the West" meaning everything from Bulgaria to Canada to
| Estonia? That's way overly broad claim.
|
| This ruling isn't even for all of the US, currently only at the
| Utah state Supreme Court level, it hasn't gone to the Tenth
| Circuit Court of Appeals or Supreme Court. This is not
| necessarily the last word on the topic, not even just for the
| US.
|
| Another of many factors is whether the person was being
| detained or merely questioned, whether they had been formally
| notified of their right to remain silent, etc.
| alliao wrote:
| Chinese netizens posed this question the other day, about how
| their police never seem to run into the US police issues unable
| to gain access; especially to iPhones.
|
| Many conspiracy theory surfaced from back door to rooted iCloud
| servers in China.
|
| Till a supposedly policemen chimed in and said they'd just browse
| through the millions upon millions of security footage to see the
| perp unlocking their phone with passcode.
| walterbell wrote:
| Apple iPhone needs opt-out of flashing the plaintext passcode
| characters onscreen during device unlock.
|
| If users need to verify the entered characters, use the "show
| password" eye icon.
|
| Avoid the attack surface of flashing inverted characters
| visible to nearby surveillance and phone cameras.
|
| _> they 'd just browse through the millions upon millions of
| security footage to see the perp unlocking their phone with
| passcode_
|
| s/browse/facial recognition search/
| DeathArrow wrote:
| I am imagining an authentication system that doesn't just ask you
| for a password but beside making sure it's you who made the
| request, also makes sure that you request the access on your free
| will without being forced.
|
| A primituve one would be requiring a main password to
| authenticate every 12 hours. If the main password is not used
| until that period passes. A second password that you don't
| memorize can be used to unlock but it is stored in a place that
| only you can access and only if you are totally free.
| notfed wrote:
| So every 12 hours you'd have to go find your non-memorized
| password? Sounds incredibly inconvenient.
|
| Anyway, a tyrant is simply going to hold and gun to your head
| and tell you to go get that second password.
| doctor_phil wrote:
| I think you read parent-comment wrong. My interpretation:
| unlock your phone normally at least every 12h. Only if you
| fail to do that, then the phone locks harder and you need to
| unlock with the non-memorizable password. Imagine the PIN/PUK
| system on SIM cards but with a timed lock-out as well. I
| agree that it sounds inconvenient though.
|
| I'm not that familiar with the US law system, but wouldn't a
| written down password be worse? With a memorized password
| it's at least possible to claim you have forgotten.
|
| Some encryption schemes allow two keys for unlocking, but
| they would show different content depending on the key. I
| think I remember trying that on TrueCrypt many years ago.
| DeathArrow wrote:
| I would imagine the second password being in a safe in a
| Swiss bank.
|
| It's not practical at all, but there should be possible to
| build systems that authenticate you only if you are free
| and doing that on your free will without any compulsion.
| Ikatza wrote:
| I sleep longer than 12h most days.
| gorgoiler wrote:
| I read the article as well as the (imho much better) blog post on
| reason.com*, and it still feels tenuous to hope that this would
| be decided definitively by the Supreme Court.
|
| In the original case the prosecution argued that the defendant's
| lack of cooperation in unlocking their phone was evidence of
| guilt. Wouldn't a Supreme Court ruling therefore be about whether
| or not a prosecutor may assert such a thing as evidence? That
| feels quite different from the original act of (and rights
| around) refusal to unlock the phone.
|
| It's as if the prosecution said "he had a gun, so he must be
| guilty!", and hoping that the case will go to the Supreme Court
| to decide on the legality of the second amendment.
|
| * https://reason.com/volokh/2023/12/14/is-compelled-decryption...
| pstuart wrote:
| Seems to me a very clear 4th Amendment issue. If there's
| reasonable suspicion that's one thing but a fishing expedition
| should not be allowed.
| chmod600 wrote:
| They had a warrant. It seems less like a 4th issue and more
| like a 5th issue.
| pstuart wrote:
| Thanks for clarifying. I should have read the article ;-)
| tamimio wrote:
| Does it only to phones?! If so, it is probably because they are
| already compromised and backdoored, unless it applies to all
| other mediums and electronics. On the other hand, I remember I
| read border controls can operate within certain distance from the
| border inside the country, and as far as I know, they can ask you
| to provide the codes.
| TomK32 wrote:
| For the US it's 100 miles and 2/3 of the US population live in
| this zone. https://www.aclu.org/know-your-rights/border-zone
| kelnos wrote:
| And you can refuse, and they can't compel you to comply. They
| can take your phone and do their best to break into it or image
| its internal storage, but they have no right to detain you
| based on a refusal to unlock your phone.
|
| If you are not a US citizen, however, and you are trying to
| enter the country, they can use your refusal as a basis for
| denying you entry. Which is garbage, but... yeah.
| eastof wrote:
| IANAL but what's stopping the "that's not my phone and I don't
| know the passcode" defense?
| vasco wrote:
| "Officer, these drugs / gun in my pocket aren't mine!!"
|
| Not sharing the password should be obviously protected, but
| saying the phone isn't yours when in your person is harder to
| try and get away with.
| andylynch wrote:
| I was a juror on a trial where this was tried. The prosecution
| showed logs from the mobile phone companies' towers showing
| where it have been seen, including overnights, and calls from
| it to the guys friends. Also didn't help him that it was on a
| loan application in his name.
|
| This helped convict them of aggravated burglary.
|
| (Incidentally, one of the others failed to provide his passcode
| but we found it implausible that he could have forgotten it,
| unlike the USA in England this is absolutely something you can
| be done for here and he was. I don't want to get in to the
| pros/ cons of this law but the basic idea is that its seen as a
| key, albeit intangible, to a locked container which
| investigators can require you to open)
| notfed wrote:
| Standard responses in order of increasing tyranny:
|
| 1. "I promise to tell you if you bring me snacks"
|
| 2. "Thanks. My password is a-n-i-d-i-o-t-t-y-p-e-d-t-h-i-s-6-9"
|
| 3. "Ok, ok, it's f-o-o-l-m-e-t-w-i-c-e-4-2-0"
|
| 4. "no."
|
| 5. "I refuse to answer any questions without a lawyer present"
|
| 6. "I don't remember the password"
|
| 7. "I tried to learned Android development and I think I
| accidentally wiped the device"
| yreg wrote:
| Is this GPT-1?
| chmod600 wrote:
| If I were SCOTUS, here's how I would settle this question:
|
| The accused can't be compelled to produce a password, and the
| prosecution can't use the defendant's silence as an argument
| against them. BUT the police can explain in court that they were
| unable to search and/or seize what's listed on the warrant due to
| an unknown password and unbreakable encryption.
|
| In other words, they can't say "Joe wouldn't give us his phone
| password and that means he's guilty". But they can say "we were
| unable to search his phone or collect these documents listed on
| the warrant due to unbreakable phone security".
|
| There's not a huge difference between those two statements when
| it comes to the jury. They'll understand that evidence is
| missing, and that the defendant can probably produce it but
| won't. Maybe civil libertarians won't like that, but I think
| that's misplaced: there is a warrant, remember, it's not just a
| random search. And the defendant can always produce it if it's
| exculpatory.
| egberts1 wrote:
| Problem with Apple iPhone authentication scheme is their
| reductive logic of eliminating one of three basic authentications
| by using OR logic, instead of AND logic.
|
| In short, they are still single-factor authentication.
|
| https://www.pearsonitcertification.com/articles/article.aspx...
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