> i.e. instead of law enforcement going to Google and Apple and saying "I have a legal right to search X. Hand it over.", law enforcement now needs to go up to the person whose papers and effects are being searched and ask the same thing.
Which is entirely the wrong way to conduct a criminal investigation. How effective can the police really be when they have to go to suspect and say "We've got enough evidence to suspect you of a crime and get a warrant, but not enough to convict. Can you please hand over all evidence that would further incriminate you?"
> It's not like Google and Apple are taking away the government's ability to issue warrants.
Eh? Police do that routinely. How do you think they get evidence to prove a building was a meth lab or crack house? They get a warrant, bust down the door and go inside. How do you think they get internal business documents when prosecuting white collar fraud? They get a warrant or subpoena and force the potentially guilty parties to hand over documents.
I'm not sure why this seems like a radical departure. "The cloud" is a very recent phenomenon. Up until quite recently almost all interesting documents were held only by the suspect parties themselves.
The two situations aren't analogous - in both my cell phone example and your meth lab example the police need warrants, but they don't need the owner's permission to bust open the door to a meth lab, and they can't bust open the login screen on an encrypted iPhone without the owner voluntarily decrypting it.
I linked to some case law examples in a previous comment[1], but basically the cops can't force you to decrypt an encrypted device because of your 5th Amendment rights, except in the rare case where you've already admitted that incriminating evidence is stored on that device (thus waiving your right to not self-incriminate).
In your white collar example, they're not demanding the suspect turn over the documents, they're demanding the employer turn over the documents, which would imply that a third party already had access to the unencrypted documents and was willing to cooperate with the police.
I think they are analogous - police usually start by asking nicely if they can search your home, and only get rough if you refuse.
WRT decryption the USA is currently in a weird spot: some countries don't have the same hangups about forcing people to reveal encryption keys or unlock codes if there is a valid warrant or court order. I think the USA will go the same direction; if I understand American history correctly the purpose of the 5th Amendment was to avoid people being coerced into giving false testimony? It doesn't really apply to things like combination locks or passwords where there's no coercion risk so the original reasoning behind the amendment would not apply.
My white collar example was thinking about banks, anti-trust and other such things where the suspect is the organisation as a whole.
The self-incrimination clause in the U.S. Constitution is rooted more in preventing the government from using coercion than it is in concern over the veracity of any testimony obtained through that coercion (of course torturing people into confessing crimes they did not commit is a major historical motivation for the provision, but mechanistically, it is not concerned with truth).
When it comes to a locked safe, the U.S. Supreme court still muses about whether revealing the combination to a lock is testimonial. For instance:
The law is still developing here, but personally, I'd prefer that it develop in a way consistent with long standing principles.
The approach the police want is to be capable of spying on everyone, then making a mockery of the justice system by constructing a plausible case based on illegally gathered evidence.
I think that the NSA's has a national security responsibility that may justify the extraordinary power that they are invested with. The problem is that their close collaboration with law enforcement is causing their "ends justify the means" culture to leak into law enforcement. How can we expect law enforcement to enforce the law if we're ingraining contempt for the law into their operating process?
the cops can't force you to decrypt an encrypted device because of your 5th Amendment rights
I don't believe this is quite correct.
AIUI, they cannot demand that you hand over the password as such, because that is tangential to the case - it's a third piece of information that has no bearing. But they can sit your down and tell you that you must unlock it for them - enter the password yourself - under penalty of the law.
> but basically the cops can't force you to decrypt an encrypted device
While true in the US, this isn't the case in all jurisdictions. For example refusing to decrypt or supply keys in the UK can land you up to two years in jail.
That is exactly how you conduct an investigation. You gather evidence establishing cause to search, get a warrant to conduct the search and get your evidence.
When the police seize your property, you're going to be compelled to provide access, or you'll be held in contempt until you do.
It does make to harder for a traffic stop to turn into a fishing expedition, but that's the point of the 4th amendment.
Warrants have never been a guarantee of producing evidence. If a prosecution relies in information alone, and that information is impossible to obtain, maybe it's not a good candidate for prosecution.
Which is entirely the wrong way to conduct a criminal investigation. How effective can the police really be when they have to go to suspect and say "We've got enough evidence to suspect you of a crime and get a warrant, but not enough to convict. Can you please hand over all evidence that would further incriminate you?"
> It's not like Google and Apple are taking away the government's ability to issue warrants.
No, but they're making the warrants useless.