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United States Cellphones Encryption Privacy The Courts Technology

Highest Court In Indiana Set To Decide If You Can Be Forced To Unlock Your Phone (eff.org) 190

The Electronic Frontier Foundation argues that police should not be allowed to force you to turn over your passcode or unlock your device. "The Fifth Amendment states that no one can be forced to be 'a witness against himself,' and we argue that the constitutional protection applies to forced decryption," writes the EFF. Last week, the non-profit digital rights group filed a brief making that case to the Indiana Supreme Court, which is set to decide if you can be forced to unlock your phone. From the report: The case began when Katelin Eunjoo Seo reported to law enforcement outside of Indianapolis that she had been the victim of a rape and allowed a detective to examine her iPhone for evidence. But the state never filed charges against Seo's alleged rapist, identified by the court as "D.S." (Courts often refer to minors using their initials.) Instead, the detective suspected that Seo was harassing D.S. with spoofed calls and texts, and she was ultimately arrested and charged with felony stalking. Along with a search warrant, the state sought a court order to force Seo to unlock her phone. Seo refused, invoking her Fifth Amendment rights. The trial court held her in contempt, but an intermediate appeals court reversed. When the Indiana Supreme Court agreed to get involved, it took the somewhat rare step of inviting amicus briefs. EFF got involved because, as we say in our brief filed along with the ACLU and the ACLU of Indiana, the issue in Seo is "no technicality; it is a fundamental protection of human dignity, agency, and integrity that the Framers enshrined in the Fifth Amendment."

Our argument to the Indiana Supreme Court is that compelling Seo to enter her memorized passcode would be inherently testimonial because it reveals the contents of her mind. Obviously, if she were forced to verbally tell a prosecutor her password, it would be a testimonial communication. By extension, the act of forced unlocking is also testimonial. First, it would require a modern form of written testimony, the entry of the passcode itself. Second, it would rely on Seo's mental knowledge of the passcode and require her to implicitly acknowledge other information such as the fact that it was under her possession and control. The lower appellate court in Seo added an intriguing third reason: "In a very real sense, the files do not exist on the phone in any meaningful way until the passcode is entered and the files sought are decrypted. . . . Because compelling Seo to unlock her phone compels her to literally recreate the information the State is seeking, we consider this recreation of digital information to be more testimonial in nature than the mere production of paper documents." Because entering a passcode is testimonial, that should be the end of it, and no one should be ordered to decrypt their device, at least absent a grant of immunity that satisfies the Fifth Amendment.
The case gets complicated when you factor in a case from 1976 called Fisher v. United States, where the Supreme Court recognized an exception to the Fifth Amendment privilege for testimonial acts of production. "State and federal prosecutors have invoked it in nearly every forced decryption case to date," writes the EFF. "In Seo, the State argued that all that compelling the defendant to unlock her phone would reveal is that she knows her own passcode, which would be a foregone conclusion once it 'has proven that the phone belongs to her.'"

"As we argue in our amicus brief, this would be a dangerous rule for the Indiana Supreme Court to adopt. If all the government has to do to get you to unlock your phone is to show you know the password, it would have immense leverage to do so in any case where it encounters encryption."
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Highest Court In Indiana Set To Decide If You Can Be Forced To Unlock Your Phone

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  • Nobody should be compelled to aid in their own prosecution.

    • by Etcetera ( 14711 ) on Monday February 04, 2019 @09:29PM (#58071282) Homepage

      Can you be forced to open up a physical safe? (Generally not, but the police can call a safe-cracker to get in as long as they have a warrant.)

      But how about a booby-trapped safe? Or one that incinerates the paper contents if a lock is forced?

      I think those are the types of comparisons that should be made when doing legal analysis on smartphone / computer storage devices (again, assuming the police have a judicially-approved warrant).

      The "it's encrypted so the bits don't philosophically exist" argument doesn't pass muster, sorry. You could say that about any stream of data, mathematically speaking. Or even programmatically speaking. ("This spreadsheet containing my drug cartel's finances is only such if you interpret the magnetic data in a certain way!") Unless the Feds are calculating hash collisions on you to plant evidence, it should be assumed that encrypted data is not data nullis until decrypted.

      • All I see is the rise of devices that shift passwords after a certain amount of time and permanently locks the device or wipes it after a certain amount of no activity. It's already becoming easy enough to do.

      • IANAL, but I believe that the police can require you to produce a physical key, if one exists. So a key to your house, or your safe, or whatever. Obviously, they have the alternative of breaking in if you refuse, but they can also charge you with a crime for your refusal. However, as I understand it, they cannot force you to open a combination safe. And this seems like the obvious equivalent to a passcode on your phone. Again, IANAL.

        It seems like the real answer should be: there should not be any legal requ

      • I think of the 5th amendment as a limitation on the use of force. Someone can be compelled in a humane way to provide their fingerprint and similar. However, compelling someone to say something is an entirely different thing and can easily become a punishment itself. This creates a situation where the state doesn't need to prove that someone committed a crime, just accuse them of something and put them in prison because they won't confess to it or provide the information needed to prove it. That is not
      • Agreed. I think the EFF is making a dangerous argument here... if they succeed, then anything the police decrypt by force(cracking code, not cracking skulls) will have been "created" when it was decrypted, therefore making it forensically invalid.

        • And what's wrong with that? There are codes which can be decrypted multiple ways, after all—the most famous being the one-time pad, which can be decrypted to any message of the same length simply by choosing the right pad. The burden should be on the police to prove that the plaintext they produced is the same plaintext originally encrypted by the suspect, and not just something invented by the police which happens to share the same ciphertext.

    • by rtb61 ( 674572 ) on Tuesday February 05, 2019 @02:28AM (#58071998) Homepage

      Do you know what they are really trying to do, what the legal reality is. They are trying to make you legally liable, with prison sentence, for the proper functioning of your phone, if you phone fails, you go to jail. Think about that, they are talking say, ten years behind bars based upon the claimed crime if your phones password function fails. Hey, lets, hold the corporation and the executives equally liable, let them sign up to a decade in prison if the phone they make ever fail the password function. Rattle of any nonsense and how can they prove you are lying unless they already have the correct password, whether your fault or the phones fault, incorrect password, ten years behind bars, really, is that anyway fair or reasonable.

      There was the other one as well, where you give the individual the correct password, they type it in and then change the password and say your password does not work and you are lying and ten years behind bars thank you very much.

      Why the fuck should any citizen be held legally liable for the functioning of their phone, hell the phone could have been hacked between the last time the person used it, even when they were using and months latter in court, what is the password, 'Go Fuck Yourself', right ten years, no that is the password 'Go Fuck Yourself', doesn't work and well pissed off judge and you a now legally liable for the phone, and it's security for months since you used it. Obviously the only place that request should be made is in a court and it would need to be done publicly in front of the judge to ensure no tampering with the process and wow, the legal responsibility you now take for the functioning of that phone.

  • If I was ever in a situation like this where I was asked to decrypt my phone, I would let the police know that I no longer remember my password. Then when/if I ever receive my phone back, I'd do a complete factory reset on it without entering the password.

    • I'd do a complete factory reset on it without entering the password.

      Methinks you might have to enter the password at some point to unlock the bootloader...

    • Re: (Score:2, Informative)

      by Anonymous Coward

      I no longer remember my password

      I'm sorry sir, but perhaps you will remember after 6 months in jail for contempt of court.

      No? Well perhaps a year will jog your memory. Or 5.

      We can wait. [arstechnica.com]

    • And subject yourself to a perjury or obstruction charge?

    • If I was ever in a situation like this where I was asked to decrypt my phone, I would let the police know that I no longer remember my password. Then when/if I ever receive my phone back, I'd do a complete factory reset on it without entering the password.

      I think on an iPhone you can do make the phone unusable (just enter the wrong passcode 12 times), but you can't make the phone usable again without knowing your Appleid and passcode. Obviously to make it much less useful for thieves. Unfortunately when you buy an iPhone on eBay and the idiot seller didn't reset the phone properly there's a problem.

  • by PPH ( 736903 )

    Here's the password.

    Uhh. Do you mind if I crouch down behind a heavy piece of furniture before you enter that?

  • by jwhyche ( 6192 ) on Monday February 04, 2019 @09:41PM (#58071322) Homepage

    It doesn't matter which way this goes it means nothing outside of Indiana. The FBI can still work you over till you crack. They will just hand it over to the federal government if they can't get you to unlock it. Then it doesn't matter what a Indiana court says.

    This needs to go to the Supreme Court so this can be dealt with once and for all. But the way the current court is stacked I'm not betting it would go the way it should go.

    • by aitikin ( 909209 )
      (Standard Slashdot style disclaimer, IANAL, I have taken a few law classes and am intrigued by how our system works/is manipulated) You're clearly not familiar with the US "Common Law" court system. Precedent [wikipedia.org] exists and other courts will consider the precedent of another state even if it doesn't have jurisdiction over the case as a general rule of thumb. Hell, there have been cases in the US where the precedent of the UK court system has been considered. Stare decisis is a thing and something that one m
      • Re: (Score:2, Insightful)

        by jwhyche ( 6192 )

        What you have is a view on how the law is supposed to work. Not how it actually works today. The worse administration in history, the one before the current, made it common practice to try to bring federal charges up when things didn't go the PC way in state court.

        • by dryeo ( 100693 )

          Does it matter when it comes to State courts considering other State courts precedent what the Federal government has done in unrelated cases?

    • The court is not "stacked". The justices have all been legitimately appointed. Stacking is how the current majority will be removed after a Democrat gets back into power in 2021. Appointing two new justices to bring the court to 11 total will restore the balance and ensure the alt-right never sees its dream come true.
      • Re: (Score:2, Insightful)

        by jwhyche ( 6192 )

        Don't you love it how when one certain political party that lost a certain election int 2016 thinks that they can change the rules. Let us be clear, here are some things that are not going to happen.

        The Electoral College is not going any where, period.

        There are NEVER going to be more than 9 justices on the supreme court, period.

        Trump is not going to be impeached and removed from office, period.

        You lost the election in 2016, you are not going to change the rules because you don't like them. Just t

        • Re: (Score:2, Insightful)

          by Anonymous Coward

          The problem isn't that he won, it's that he's a shitty President.

          • by jwhyche ( 6192 )

            You keep saying that. It's like if you keep saying it, it will be true. Silly democrats. Reality is a good place, you should try it some times.

        • If the progressives (left wing Democrats) keep pushing they could force an independent goverment department to handle districting and voter lists and handling elections. This would prevent Republicans and centralist Democrats from rigging the elections to favour the Rich White Men that currently run America.
          • you say that like it would be a bad thing, If this was a South American, African, or Asian country where the people with a vested interest in the results of an election making the districts or rules for elections there would be an investigation within days.
        • The Electoral College is not going any where, period.

          There are NEVER going to be more than 9 justices on the supreme court, period.

          Trump is not going to be impeached and removed from office, period.

          One of these is not like the other. And the fact you state it with "period" means that you have abandoned the concept of rule of law. Or maybe you believe that congress has abandoned that concept. Heck no one in the history of impeachments has thought it likely for a president to be impeached before some charges were actually brought against them.

        • by rwyoder ( 759998 )

          There are NEVER going to be more than 9 justices on the supreme court, period.

          The size of SCOTUS is determined by Congress, not the Constitution.
          It has been as small as 7, and as large as 10 (from 1883-1886).

          • Correct, which is why FDR's plan to pack the court in 1937 failed (because Congress tossed his proposal into committee and left it to it die there.)

      • Re: (Score:2, Insightful)

        by AmiMoJo ( 196126 )

        The Republicans refused to even hold hearings for Obama's SC candidate. He could have just appointed them anyway, after all if the Republicans aren't going to pay any attention to constitutional norms why should he? But he didn't, he took the moral high road and tweeted about it now and then.

        It really is time that you reformed the SC. Limited terms for justices at the very least, and a much more robust vetting process.

        • Obama could have simply appointed Garland to sit on the USSC, but it would have been temporary, and Mr. Garland would have been removed the say that the Senate reconvened in 2017. Constitution says the Senate has to advise and consent, and without that, any appointment by the executive is temporary at best.

          Also, note that Garland was nominated in the beginning of election season (which started in Jan. 2016 with the Iowa Caucus), so the Senate was well within its rights to postpone confirmation until whoever

        • by jwhyche ( 6192 )

          It really is time that you reformed the SC. Limited terms for justices at the very least, and a much more robust vetting process.

          No it isn't. It works just fine the way it is. The vetting process works just fine. It worked great with the last nomination and it will work with Trumps next pick just as well. We don't need limits on the justices because job security is one of the reasons they can be impartial as they are.

  • Guess all our rights are privileges now.

  • I'm pretty sure there exists a Dilbert cartoon where Wally is being accused of using his computer to look at porn and one of his "defenses" is that, technically, it's all just ones and zeros until the computer is turned on?
  • by R3d M3rcury ( 871886 ) on Monday February 04, 2019 @09:47PM (#58071346) Journal

    In a very real sense, the files do not exist on the phone in any meaningful way until the passcode is entered [...]

    One could argue that, at the quantum level, the files both exist and do not exist and it is the action of unlocking the phone that causes the files to exist.

    Or not. I know nothing of quantum mechanics...

  • by account_deleted ( 4530225 ) on Monday February 04, 2019 @09:56PM (#58071372)
    Comment removed based on user account deletion
    • File compression does the same thing

      Not true. File compression is self sustaining and very much not encrypted in any way. The contents of the file can be restored with information from the archive itself. That is quite different to something requiring an independent decryption key.

  • Ok your honor the pass code is 1234. Or maybe 4321? No wait its 1111! Sorry you had my phone away from me for too long and I usually type it using muscle memory and its gone now. Lets just reset it back to factory settings and I can set up a new code for you ;-)

  • They can put you behind bars, but that doesn't guarantee unlocking the phone... While not everyone might be resistant to the point of even going to jail, if they cannot get what they want by threatening punishment, what good does the punishment even do?

    Further, I can imagine a futuristic type of lock existing someday that would not unlock under any circumstances when its designated owner is compromised, perhaps to keep trade secrets secure... Being arrested and compelled to unlock your phone could be interpteted by such a system as such a comprise, and there would be absolutely no way to force the person to unlock it, even if they wanted to at that point.

    • by f3rret ( 1776822 )

      The legal term is "compel" not "force".
      It basically amounts to: "Do this thing or face legal trouble".

    • If the goal of the police is to lock you up, then they win.
      • by mark-t ( 151149 )

        That's assuming that is the goal... why would they have that goal without evidence?

        And if they don't care about evidence, then they can lock you up anyways by simply manufacturing a crime that you never committed at all.

    • Android and iPhones could easily employ a mechanism that wipes a phone that isn't logged into in 7/30/365/whatever days. That would also mean the state could only hold you in contempt for a limited period. Now, they could try to get you for destruction of evidence after the fact, but that is a whole different can of worms.

  • by Anonymous Coward on Monday February 04, 2019 @11:13PM (#58071540)
    I'd like my phone to have a secondary code that causes it to erase all data on the phone.
    • Re: (Score:2, Informative)

      by Anonymous Coward

      No no no, that's automatic destruction of evidence, and contempt of court. What you want is a dummy profile - one that doesn't retain call/text/web history and has a few 'safe' phone numbers in it.

      Now that you mention it, why doesn't the the prosecution probably already have the call/text/web history? Why do they need her to unlock the phone? If she was harassing the guy like they say, can't the phone company pull her call/text history?
      Hmm. I wonder if she was using one of those Internet based VOIP num

      • by sjames ( 1099 )

        It must have malfunctioned!

        • Oh good. Not one but 2 counts of contempt of court. Such a stupid lie won't get you very far.

          • by sjames ( 1099 )

            Prove it didn't, forget the whole thing, or admit the Constitution has been shredded.

            • Prove it didn't

              No need. It's up there with the "I forgot" cases. The amazing coincident that something magically happens to evidence by pure unlucky malfunction is beyond any reasonable doubt of malfunction.

              or admit the Constitution has been shredded.

              The constitution says nothing about defending your acts of god during a legal case. When it all comes down to it in criminal activity your high and mighty constitution combined with your incalculable lucky break just fails to meet any requirements of reasonable doubt.

              Sorry mate, but when you look guilty AF you will ult

              • by sjames ( 1099 )

                Innocent until proven guilty. Fortunate and unfortunate coincidence does happen all the time. Long chains of fortune may strain credulity, but single coincidences are not only common, but a lack of them would strain credulity.

                Take any disaster in history and you will probably find a number of people who survived because their alarm didn't go off or the car wouldn;'t start or they couldn't find their keycard, etc. On the other side, there are people who mis-dial and accidentally set up a drug buy with a cop

                • Innocent until proven guilty.

                  No. Innocent until thought guilty beyond reasonable doubt. Catch phrases won't get you far in the legal system.

                  • by sjames ( 1099 )

                    And that's because the Constitution is in the shredder.

                    • You should read the constitution. You'll find that it has nothing to do with anything being discussed here. Not free speech, not self incrimination, and not being innocent until proven guilty.

                      But you're on a role for not knowing the legal system of your country.

                    • by sjames ( 1099 )

                      Apparently you don't. I am well aware that a great deal of sophistry has grown up around violations of the Constitution. I simply don't buy in to it.

                      You've painted yourself into a corner and so you are now left with only bald assertions and misquotes of the law. For some odd reason you are supporting imprisoning someone based on no evidence whatsoever and with no jury in sight.

                      You claim that forgetting and malfunctions are so unlikely as to be beyond reasonable doubt. I pointed out that people do forget all

      • because the way they have the information is inadmissible in court so they're trying parallel construction?
  • There are already several cases where you can be compelled to to divulge your passwords or crypto keys:

    https://www.youtube.com/watch?... [youtube.com]

  • There is already a feature on many phones to wipe them if a certain number of attempts are made to unlock them with the wrong password.

    Why not simply have another feature that wipes the phone immediately if someone enters a specific password?

    This is a feature I'd be willing to upgrade for.

  • They can't. 5th and 14th Amendments, preserving the pre-existing right, also protected by Common Law, against self-incrimination. I don't doubt that they will try, but, if and when they do, they mark themselves as traitors, and even if they do not face justice in this life, they will in the next.

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