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

592 点作者 oedmarap超过 3 年前

22 条评论

kingcharles超过 3 年前
This happened to me. The police wanted my password and refused my right to silence, wouldn&#x27;t let me call a lawyer. I wouldn&#x27;t talk. Then they threatened my wife and I gave up my password to stop them from hurting her.<p>The password was suppressed by the court, but they let the police use it anyway because one of the officers (with no formal computer qualifications) testified he could have broken 2048-bit AES encryption without the password. And worse case he said he would unsolder the chips off the circuit board and put them onto another board and that would fix it. The judge allowed the testimony and believed it.<p>Make sure you always use a password on your devices though. Biometrics are not protected by the 5th Amendment in the USA as the police can legally force your finger onto a touchpad or hold your face in front of a camera.
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dahart超过 3 年前
&gt; this case turns on one of the most fundamental protections in our constitutional system: an accused person’s ability to exercise his Fifth Amendment rights without having his silence used against him.<p>A very interesting tidbit I learned here on HN a couple years back — the Supreme Court ruled in 1992 that you have to declare out loud an intent to invoke your Fifth Amendment rights, if you haven’t been formally arrested yet. Literal “silence” may be acceptable after being Mirandized, but not necessarily before.<p><a href="https:&#x2F;&#x2F;harronlaw.com&#x2F;blog&#x2F;miranda-rights-texas&#x2F;" rel="nofollow">https:&#x2F;&#x2F;harronlaw.com&#x2F;blog&#x2F;miranda-rights-texas&#x2F;</a><p><a href="https:&#x2F;&#x2F;www.oyez.org&#x2F;cases&#x2F;2012&#x2F;12-246" rel="nofollow">https:&#x2F;&#x2F;www.oyez.org&#x2F;cases&#x2F;2012&#x2F;12-246</a><p>“Question: Does the Fifth Amendment&#x27;s Self-Incrimination Clause protects a defendant&#x27;s refusal to answer questions asked by law enforcement before he has been arrested or read his Miranda rights?”<p>No, by 5-4 vote.
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LinuxBender超过 3 年前
Sortof off topic question. I&#x27;ve never owned a smart phone but might get one soon assuming I can find a decent one that will run grapheneOS.<p>Is there an app that can be given permission to intercept the unlock code and upon receiving the <i>panic&#x2F;under duress</i> code, discretely put the phone into a &quot;parental controls&quot; configuration that sandboxes all your data and only presents the storage you want the law enforcement <i>children</i> to see? Some cops use a USB device that pulls all the data from the phone. Is there a way to sandbox that data so they only get the data from approved apps and the forensics USB device does not know any better? i.e. not denied data, but rather can only see what you want it to see. Or should this be a feature request to the alternate phone operating systems developers?<p>Maybe this duress code should also activate a timer. If the <i>all-clear</i> code is not entered in a user-defined period of time, the phone wipes all user data in the background resetting it to a brand new phone. Or maybe wipe the data for specified applications to not appear to destroy evidence? Maybe also send network notifications(s) to specific <i>in case of mission compromise</i> destinations?<p>[Edit] Feature request update. This duress system should also log all the data that was added <i>or planted</i> after the duress code was entered, to log people planting evidence. Upload encrypted manifest,timestamps and checksums to remote site in the event law enforcement tamper with evidence.
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opheliate超过 3 年前
Meanwhile, in the UK: <a href="https:&#x2F;&#x2F;www.hcsolicitors.co.uk&#x2F;news&#x2F;giving-the-police-your-pin-or-password-to-your-phone" rel="nofollow">https:&#x2F;&#x2F;www.hcsolicitors.co.uk&#x2F;news&#x2F;giving-the-police-your-p...</a><p>If a judge authorises a notice, under RIPA, you can be served a 2 year sentence for failing to disclose your phone&#x27;s passcode.
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Ansil849超过 3 年前
Here&#x27;s the thing: you can have all sorts of detached, academic discussions on a forum like HN or on a blogpost about what the best thing to do is, or the most pragmatic thing, or the worst thing when dealing with a police encounter.<p>But if you ever find yourself in a situation where a police officer is pointing a gun at you, none of this discussion matters. I&#x27;ve had that happen to me (when an AirBNB owner failed to mention that they have a silent alarm system which calls the police). It is not pleasant, and there are no clever things to do or say. You will do whatever the cop wants, because you do not want to be shot.<p>People don&#x27;t like hearing this. They like to think of themselves as being smart, as having self-respect and dignity, as being able to &#x27;speak truth to power&#x27; or at least stand their ground. That, unfortunately, is not the reality.<p>Should you encounter, at some point in your life, a situation where a police officer is pointing a gun at you, you will do whatever the fuck they are telling you to do. That&#x27;s the grim reality.<p>It is an utterly dehumanizing, degrading interaction. There are no witty things to say or do. You will do whatever you are told, because a person is pointing a deadly weapon at you and telling you to do them.
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SavantIdiot超过 3 年前
Lots of posts on here about US folks taking bizarre measures to avoid being harassed by authority: travel with burner phones, not using unusual OSes, not using techniques to record, wiping phones before travel.<p>We&#x27;re just normalizing a slow roll to a police-state.
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socrates1998超过 3 年前
Don&#x27;t talk to the police. It really isn&#x27;t in your interests at all. They are there to arrest people, not be your friend.<p><a href="https:&#x2F;&#x2F;www.youtube.com&#x2F;watch?v=d-7o9xYp7eE" rel="nofollow">https:&#x2F;&#x2F;www.youtube.com&#x2F;watch?v=d-7o9xYp7eE</a>
nixpulvis超过 3 年前
Hmmmm... I was under the impression this was already the case. I remember reading about this a while ago when I was learning that they <i>can</i> force you to provide a fingerprint or face-scan.
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joecool1029超过 3 年前
Change the damn topic please, this is just for Utah at the moment. It may be that after the state decides this will go to SCOTUS but I really don&#x27;t know if Utah works different than my home state, New Jersey (which has to send cases like this off for consideration to SCOTUS). Even if it makes it there, they&#x27;ll probably decline to review it, because they suck.<p>In New Jersey you can absolutely be compelled to reveal your passcode: <a href="https:&#x2F;&#x2F;www.eff.org&#x2F;cases&#x2F;andrews-v-new-jersey" rel="nofollow">https:&#x2F;&#x2F;www.eff.org&#x2F;cases&#x2F;andrews-v-new-jersey</a>. Again, as with many of our (non-1A) bill of rights cases, SCOTUS declined to hear the case: <a href="https:&#x2F;&#x2F;www.scotusblog.com&#x2F;case-files&#x2F;cases&#x2F;andrews-v-new-jersey&#x2F;" rel="nofollow">https:&#x2F;&#x2F;www.scotusblog.com&#x2F;case-files&#x2F;cases&#x2F;andrews-v-new-je...</a>
anonymousiam超过 3 年前
I&#x27;m a long-time EFF supporter, but I am always concerned when they (or any other organization that defends civil rights) chooses to intervene in a loser of a case like this. The defendant will likely be convicted of kidnapping, and hopefully the Supreme Court will not use some form of twisted logic to rationalize what the cops did. The correct ruling here is to force a mistrial and forbid any testimony about refusing to provide passcodes at the retrial.
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greenail超过 3 年前
The foregone conclusion doctrine also is something folks should know about.<p>&quot;while the content was itself not protected, the act of production could be testimonial irrespective of the content. The court reasoned, “[t]he act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer.” The court thus recognized that, in some instances, the Fifth Amendment protects the act of production.<p>Despite the act of production principle, the court in Fisher reasoned that “[t]he existence and location of the papers are a foregone conclusion, and the taxpayer adds little or nothing to the sum total of the Government&#x27;s information by conceding that he, in fact, has the papers. Under these circumstances ... ‘no constitutional rights are touched. The question is not of testimony, but of surrender.’” This is referred to as the “foregone conclusion” exception to the “act of production” doctrine. In short, the Fifth Amendment is not implicated if the government knows of the existence, possession and authenticity of incriminating evidence, because the production thereof contains no testimonial import. Both the act of production and foregone conclusion doctrines are important to our understanding of how the Fifth Amendment protects against the compelled production of our passwords&quot;<p><a href="https:&#x2F;&#x2F;www.lawfareblog.com&#x2F;fifth-amendment-decryption-and-biometric-passcodes" rel="nofollow">https:&#x2F;&#x2F;www.lawfareblog.com&#x2F;fifth-amendment-decryption-and-b...</a>
jsilence超过 3 年前
If the government has my fingerprints, would they be allowed to use them to unlock the confiscated phone?<p>Might explain why in Germany s of lately you have your fingerprints taken when getting your personal ID (Personalausweis).
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hungryforcodes超过 3 年前
Sorry-- this is totally unrelated and maybe even inappropriate-- but how do people sort through 300+ comments on HN to consume a topic? I understand that &#x2F;. introduces bias with its system, but I honestly find myself abandoning alot of deeper HN threads because it&#x27;s so difficult to parse all the comments. Perhaps I&#x27;m missing something.
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crate_barre超过 3 年前
I would not put it past a cop to hold a phone up to someone’s screen and FaceID unlock it and then say you unlocked it yourself.
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emilfihlman超过 3 年前
But wait, does this say that another court order can compel you to unlock it anyways?<p>That doesn&#x27;t seem logical at all.
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evgen超过 3 年前
Claim the EFF, but headline statement is not an assertion that has held up in court.
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jollybean超过 3 年前
&quot;In Valdez, the defendant was charged with kidnapping his ex-girlfriend after arranging a meeting under false pretenses. &quot;<p>&#x27;Valdez&#x27; is not going to be arbitrarily charged with kidnapping, he&#x27;ll have the ex-girlfriend as a primary witness.<p>If I were innocent and accused of kidnapping someone I&#x27;d check with my lawyer and then hand over my phone because it would exonerate me.<p>I&#x27;m inclined with the ruling, but let&#x27;s be pragmatic here for a moment and recognize whether or not we&#x27;re seeking actual just outcomes.<p>I&#x27;d imagine they should make getting a court order for such a serious crime very quickly kind of a priority.
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andrewshadura超过 3 年前
The title should start with &quot;In the US&quot;.
Threeve303超过 3 年前
Nothing stopping them from holding it up to your face to unlock it, though, right?
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remram超过 3 年前
There should be a second passcode that erases the phone or locks it for 3 days.
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pdimitar超过 3 年前
Formally the police can&#x27;t demand a lot of stuff. Informally, they&#x27;ll put you in a room and tell you that they have the legal right to keep you anywhere from 24 to 72 hours in there and they definitely can make you reconsider during that period -- to put it very mildly. Hint: some cops are <i>really good</i> in the skill of inflicting pain to people without lasting medical trace to prove it afterwards.<p>Until there&#x27;s true accountability and 100% transparency, these legislations and&#x2F;or idealistic slogans don&#x27;t mean much.<p>Technically airport security can&#x27;t make you unlock your phone in many countries as well but I&#x27;ve known two former colleagues who were &quot;convinced&quot; to do so in the airport&#x27;s back room; the one where problematic passengers are held for 8-24h.<p>So yeah, thanks for nothing -- namely for stating the ideal theoretical state of things -- but a lot of people out there need actual real-time protection, on the spot. Address that.<p>&quot;Raising awareness&quot; doesn&#x27;t work on ruthless cops. I guess that&#x27;s a mind-blowing revelation to many Westerners.
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jsilence超过 3 年前
If the government has my fingerprints, would they be allowed to use them to unlock the confiscated phone?<p>Might explain why in Germany as of lately you have your fingerprints taken when getting your personal ID (Personalausweis).
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