
NJ Supreme Court: No 5th Amendment right not to unlock your phone - elliekelly
https://arstechnica.com/tech-policy/2020/08/nj-supreme-court-no-5th-amendment-right-not-to-unlock-your-phone/
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elliekelly
It seems there is no clear consensus on whether, and in what circumstances,
the fifth amendment applies to phone passcodes:

> Earlier this year, a Philadelphia man was released from jail after four
> years of being held in contempt in connection with a child-pornography case.
> A federal appeals court rejected his argument that the Fifth Amendment gave
> him the right to refuse to unlock hard drives found in his possession. A
> Vermont federal court reached the same conclusion in 2009—as did a Colorado
> federal court in 2012, a Virginia state court in 2014, and the Massachusetts
> Supreme Judicial Court in 2014. But other courts in Florida, Wisconsin, and
> Pennsylvania have reached the opposite conclusion, holding that forcing
> people to provide computer or smartphone passwords would violate the Fifth
> Amendment.

~~~
bitxbitxbitcoin
This is going to have to be decided in US Supreme Court and I hope it happens
sooner rather than later.

~~~
supernova87a
That is the opposite of the Supreme Court's approach. They want this to be
argued over and the facts laid out as much as possible so the issue is clear,
and the conflicting approaches demonstrated (and range of cases that fall into
the ambiguity zone), before they step in.

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kube-system
The core argument here sounds surprisingly reasonable: that the Hubbell case
was a 5th amendment violation because the defendant was asked to make a
judgement call about which documents to produce, and that a fishing expedition
would be a 4th amendment case.

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sebazzz
Now it is just a matter of time before Apple and other manufactures will
implement a 'fake PIN' just like Truecrypt/Veracrypt backup password feature:
A void unused phone profile with a separate data store. Looks legit, but keeps
the actual interesting data locked away.

~~~
colejohnson66
That’s illegal too. If the police find out you provided them fake data, that’s
the crime of lying to police.

~~~
sebazzz
Then it is up to the implementation to make it look legit.

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supernova87a
Of course the whole thing will generate a lot of debate (and has been covered
many times before), but I point out a situation that could be regarded as
similar:

A court can compel you to give blood (or have blood taken from you) if you're
suspected of drunk driving. That is not incriminating testimony, but the
result may incriminate you.

I can see the logic being similar here. Fingerprint, passcode -- courts and
law enforcement are clearly testing the limits of where the boundary is.

~~~
elliekelly
But a passcode exists only in your mind and you have the right to remain
silent.

And what if it isn’t your phone but you’ve been compelled to unlock it and you
genuinely don’t know the passcode? I don’t think the blood withdrawal is an
apt analogy for a password though I do think it makes sense when discussing
compelling a fingerprint scan.

~~~
tzs
> But a passcode exists only in your mind and you have the right to remain
> silent

There isn't actually a "right to remain silent" per se in US law. The various
right to silence all have limitations.

For example, suppose a smuggler shoots and kills a bounty hunter in a cantina.
The bartender tells investigators you were there and are the only person who
had a clear view of what happened. Investigators want you to tell them what
you saw.

However, you are on parole and being in a cantina violates your terms of
parole. If you testify about the shooting that is tantamount to admitting to a
parole violation, and it is back to prison for you so you try to invoke your
Fifth Amendment right against self-incrimination.

Prosecutors then grant you immunity for any parole violations that occurred
while you were at the cantina. Your testimony is no longer be self-
incriminating, and can now be compelled.

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hirundo
1\. Tatooine is extra jurisdictional territory for 5A. 2. I witnessed it. Han
shot first.

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omgwtfbyobbq
It'd be nice if there was a form of encryption where a user could provide a
secondary password plus a unique hash associated with a file to check if that
file is present without opening up access to everything.

~~~
elliekelly
Or if you could set a “self-destruct” or “wipe disk” passcode. We toyed with a
similar idea for ATM cards in Massachusetts after a woman in Boston was
abducted, forced to withdraw money from her bank account and then brutally
murdered.

The idea being that you’d have a PIN and an optional “911 PIN” that would work
exactly the same but alert authorities. The PIN would grant you access to
accounts and give you money, etc. so anyone holding a gun to your head would
be clueless but by entering the 911 PIN authorities would know you were in
need of immediate assistance.

It was ultimately scrapped because the regulator backed off of requiring
additional ATM security once the news stopped covering the murder. But the
same concept could be applied to unwanted cellphone intrusions.

~~~
sneak
There is a setting on iOS to wipe the device automatically after 10 failed
passcode attempts.

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recursivedoubts
I think that covid has pretty well killed the idea that the constitution is
relevant in any situation the government feels strongly about.

~~~
disposekinetics
I hadn't considered it this way, but you are correct in that the COVID-19
crisis has been putting a lot of stress on the limits of government in the
constitution. It also seems clear that federalism and individual liberty are
at odds with the effective fighting of highly contagious diseases in a
coordinated fashion. I do not want to give the government power because they
have a track record of abuse, but how does a society fight something
communicable like this?

~~~
cma
Even Hayek said epidemics were an obvious exception to most of his economic
ideology and called for government planning:
[https://twitter.com/nntaleb/status/1274130684337172481](https://twitter.com/nntaleb/status/1274130684337172481)

Mostly we just have had anti-biotics, effective vaccines, etc. for everything
deadly and have basically forgotten how to govern in the face of the massive
externalities presented by communicable diseases. Whether someone thinks covid
is severe enough to justify which particular actions is one thing, but if we
had something like an incurable smallpox or measles going around there would
be a lot more consensus on government action.

~~~
vladus2000
Would we? I am not convinced the amount of idiocy would be low enough to
prevent problems. Most of the arguments I have seen have been "this is a hoax"
type or other arguments not based in reality. I agree there is an arugement to
be made over whether or not to close based on death rates and whatnot, but I
do not hear those arguments that much.

The people screaming that it is a hoax and its their freedom I generally
assume would react similarly to a even more severe crisis. Maybe I am over
estimating their numbers based on the fact that they are loud, but assuming
they will realize it is really serious in the cases you describe is a leap I
am not willing to make.

~~~
cma
There would be many more people with personal experience of death of loved
ones young and old and I think that would mean less deniers.

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dilippkumar
> New Jersey's Supreme Court has ruled that compelling a suspect to unlock his
> or her cell phone doesn't violate the Fifth Amendment.

For those who couldn't be bothered to think through the triple negations in
the title.

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searchableguy
Is there anything for android that resets phone under a specified duration if
not unlocked or used?

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quotha
Do you still have the right to remain silent?

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coolspot
AFAIK You have a right to remain silent during your arrest and before you face
a judge.

If court orders you to do something (legal ofc) you will have to do it, if
they ask you a question - you will have to answer it. Except something that
would incriminate you or your immediate relatives.

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LatteLazy
Of course the unexplored downside of this ruling is that the punishment for
forgetting your passcode (password etc) is now life in prison...

~~~
supernova87a
I think a court would reason that if a phone is being used hour by hour, it's
not likely that a person would "forget" that passcode suddenly, and there is a
more simple explanation of what's happening.

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searchableguy
Eh. I have forgotten important passwords and lost accounts that I had used for
years the next day. It absolutely happens.

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anon9001
I have too. It's very rare but really disconcerting when it does happen. Human
memory is pretty faulty.

~~~
irontinkerer
I have too. Staring at my keyboard in complete disbelief that a password I
used hours before had fallen out of my head. Still amazes me that I can forget
things so easily

