
Police push legal boundaries to get into cellphones - timemachine
https://www.nbcnews.com/news/us-news/give-your-password-or-go-jail-police-push-legal-boundaries-n1014266
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oarabbus_
>The officers demanded his passcodes, warning him they’d get warrants to
search the cellphones. Montanez suspected that police were trying to fish for
evidence of illegal activity. He also didn’t want them seeing more personal
things, including intimate pictures of his girlfriend.

The police have a right to attempt you trick you into giving up information
you shouldn't. Plead the fifth/don't talk to the police.

>So he refused, and was locked up on the drug and firearms charges.

This is fair.

>Five days later, after Montanez was bailed out of jail, a deputy from the
Hillsborough County Sheriff’s Office tracked him down, handed him the warrants
and demanded the phone passcodes. Again, Montanez refused. Prosecutors went to
a judge, who ordered him locked up again for contempt of court.

This is also fair. The police acquired a warrant and presented the warrant
legally. The man refused, committing the crime of contempt of court, which is
a fair and just punishment for refusing to heed a court-issued warrant. It's
also within his right to decide to serve the time for contempt of court rather
than providing the password.

Yes, there are lots of bigger issues touched upon in this story, but the
headline seems sensationalist. Didn't the police do the right thing by
obtaining a warrant for the password?

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iandanforth
Legal yes, right no.

In many situations you cannot be forced to provide evidence that would be used
against you or information which would lead to such evidence. I would go
further and say that in all cases you shouldn't be required to provide such
information.

It should be recognized as a basic right that you do not have to aid those who
are trying to convict you of a crime. Our system of justice is _adversarial_
for good reason and it is explicit in forcing those with the most power to
limit the use of that power for the benefit of the accused. Without those
checks and balances (and frequently even with them) abuse of that power, under
the auspices of a greater good, would be common.

~~~
rayiner
The law draws a distinction between being forced to testify against yourself
(which essentially has you _creating_ evidence to be used against you), and
being forced to turn over evidence in your possession which may be used
against you. The latter isn’t indicative of an abuse of of power. The pre-
existing physical evidence is what it is, and proves what it proves.

Your proposal is also unworkable. Should companies not be required to hand
over corporate records, because those might implicate them in a crime? Should
a murder suspect be allowed to deny police access to his shed, where the
murder weapon might be hiding? A bedrock principle of law is that “the law is
entitled to every man’s evidence.” The whole point of warrants is to reconcile
that principle with private property—to create a structured way for police to
access private property to get access to evidence. Your proposal isn’t a
“check” or “balance”—it obliterates that principle. It allows wrongdoers to
hide evidence of their crimes even against a valid warrant.

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manfredo
But a password isn't evidence, it's testimony. The Supreme Court has held that
you don't need to turn over "contents of the mind". The example of Wikipedia
uses a bank password as an example [1]. In fact even the act of turning over
the password demonstrates that the defendant had control of the device and
could easily be argued to be self-incriminating.

Also, think about the implications of this. What if the person being ordered
to hand over the password says "I forgot"? How do we know if they have
_genuinely_ forgotten the password?

1\.
[https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_...](https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution#Combinations_and_passwords)

~~~
rayiner
It may or may not be testimony. The Wikipedia example you’re referencing turns
on the fact that knowing the password to the account proves ownership or
control of the account, which itself may be a fact relevant to the charges.
For example, if the account is connected to know money laundering. Turning
over the password to a phone may or may not reveal similar information. If the
phone was found at a drug stash house, knowledge of the password reveals a
connection to the crime. If it’s just your phone, and there is no doubt it’s
your phone, knowledge of the password doesn’t in and of itself reveal
anything.

Testimony is stuff you’d tell a jury. In the bank account example, you’d tell
the jury: this account was used by the criminal, and the accused knew the
password, it must be his account. You wouldn’t tell the jury “the accused knew
the password to what was undisputedly his own phone.”

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metalliqaz
Plausible deniability. Encryption systems that are designed for countering a
hostile threat that can force you to divulge the key have two passwords. One
opens your real data, one opens a decoy. It would be nice is phones had that
feature.

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vegiraghav
Hello Irene Adler

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joshuaheard
He went to jail for contempt of court for ignoring a court order, not just
disobeying police to unlock his phone. This would be true for any court order.
In the article, it appears the police had probable cause for the warrant to
search the phone by the text popup that appeared on the locked phone.

~~~
gdhbcc
If a court order said he had to confess, and arrested him for not doing so,
would you say that is a lawful order?

And if not, what is the difference between being ordered to confess and being
ordered to produce evidence harmful to yourself?

Courts should have the right to seek evidence, no one is disputing that, nor
is anyone disputing the rights of the court to seek that evidence unmolested,
but there is a difference between seeking evidence and mandating compliance.

As far as I am concerned courts should not have any right to compel any
action, particularly specific action. They should only have a right to compel
inaction. In short, the court can issue warrants that permit their officers to
conduct actions that would otherwise be illegal, for example entering my house
without my permission, and they may even compel me to stand outside and not
interfere while they do so, but they should never be able to compel me to open
the door for them.

~~~
leesalminen
> but they should never be able to compel me to open the door for them.

If they have a warrant and don’t open the door, they will break it down with a
sledge hammer.

~~~
gdhbcc
And they are welcome to do so, so long as I am made whole at the end of the
investigation if no evidence is found.

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LinuxBender
This seems to me like a technical problem. Assuming one must really store
sensitive things on smart phones, there should be a way to do this AND
allowing one to share the phone unlocked with an adversary without risk of
leaking data. Multiple unlock codes maybe?

Maybe a tertiary duress code that starts a timer and performs predefined
actions after {n} minutes. i.e. send control code to a server, notify friends,
family, lawyer you are under duress with GPS coordinates, wipe phone at the
risk of destroying evidence, start sending audio to youtube, transfer /
delegate data to a different predefined device, etc... Might be useful if you
are being mugged.

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jimbob45
Well, in my opinion, the closest analogue would be mail. Can the police search
through your mail?

[https://www.legalmatch.com/law-library/article/can-the-
polic...](https://www.legalmatch.com/law-library/article/can-the-police-open-
your-mail.html)

The answer is yes, with a search warrant. Therefore, I see no reason that a
phone should be treated differently.

~~~
yardie
If the police want to open my phone I will supply them with the pentalobe
driver to do so.

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squarefoot
Phone OSes should allow the user to exercise plausible deniability by having
dual or multiple passwords or other physical means of telling the phone to
unlock only in a safe mode that will reveal innocuous documents or photos,
job, relatives and friends contacts, and possibly let the inbox and outbox
contain only conversations from clean numbers. If a cop signals to pull over,
a short bossa nova tap on the phone case might get detected by the
accelerometer and trigger that safe mode, until the user tells the phone the
emergency is over by tapping a pataflafla followed by a paradiddle diddle
(just kidding, but you get the point:^) Not that I condone any illegal use of
cellphones, but often a wrong assumption by a police officer paired by his
perceived omnipotence can easily escalate to a level much worse than the
"crimes" they intended to prevent.

~~~
idDriven
Phone maker Xiaomi's Miui version of Android has a feature much like this
called Second Space where you can create a clean copy of the OS and only
import what data you choose from your primary account. Call and SMS history is
shared but not contacts, but SMS being insecure an App like telegram used in
first/primary space would be more secure anyway.

I haven't really used the feature yet but thought it was a really cool idea.
[https://www.pcsteps.com/18454-second-android-user-account-
xi...](https://www.pcsteps.com/18454-second-android-user-account-xiaomi-
second-space/)

~~~
Balgair
Blackphone2 as well: [https://www.silentcircle.com/products-and-
solutions/blackpho...](https://www.silentcircle.com/products-and-
solutions/blackphone2/)

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ThrustVectoring
IMO, the legal landscape here hasn't kept up with changing social conditions.
A huge amount of social and personal activity is now getting mediated through
technology, and legal protections have not been correspondingly extended.

Cell phones routinely keep a log of who you've been talking to, when, and a
big chunk of the actual contents. They also will often collect location
history, or broadcast the location to third parties as part of their normal
operation.

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LifeLiverTransp
What if i programmed a phone to no reveal data, even with the correct
passphrase, as long as the user is seen under pressure by law enforcement or
society to reveal data?

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metalliqaz
and how would you program that?

~~~
rolph
alexa, hide !

-ok ill let you know how to find me when i hear the safe word

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jacamat
jail is not that bad.

~~~
dang
Maybe not, but please don't post unsubstantive comments here.

