“Next week, a local judge in Miami-Dade County, Florida, is expected to issue a key ruling in a bizarre sextortion case involving two Miami-area social media personalities,” Cyrus Farivar reports for Ars Technica. “”
“The question before the court is one that has vexed other judges in recent years: can a person be forced to give up a password to decrypt their seized devices? Or, put another way, does the Fifth Amendment right against self-incrimination allow people to keep their encrypted devices locked?” Farivar reports. “‘I’m going to have to read these cases with a fine-tooth comb,’ Circuit Judge Charles Johnson said at a hearing this week, according to the Miami Herald. ‘I’m surprised by this case.'”
“This issue is far from settled law. A former Philadelphia police officer has remained in custody for 18 months and counting for refusing to decrypt a seized hard drive that authorities believe contains child pornography,” Farivar reports. “While the facts in that Pennsylvania case are different from the Florida case, the underlying issue remains the same.”
Read more in the full article here.
MacDailyNews Take: Note that when an iPhone hasn’t been unlocked using the Touch ID feature for 48 hours, or has been restarted, the iPhone will require the passcode to unlock.
At issue is the following:
U.S. Constitution
AMENDMENT V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
—
Sometimes the law gets too cute. We shouldn’t leave common sense out of the equation. The process is the same thing. You’re getting access to someone’s most private information by forcing someone to give you the key. — Miami defense attorney David Oscar Markus, May 2016
Ultimately, the U.S. Supreme Court will likely have to weigh in.
SEE ALSO:
Feckless FBI unable to unlock iPhone, even with a ‘fingerprint unlock warrant’ – May 12, 2016
The Touch ID lock on your iPhone isn’t cop-proof – May 11, 2016
U.S. government wants your fingerprints to unlock your phone – May 1, 2016
Should you disable Touch ID for your own security? – May 9, 2016
U.S. government wants your fingerprints to unlock your phone – May 1, 2016
Virginia police can now force you to unlock your smartphone with your fingerprint – October 31, 2014
Apple’s Touch ID may mean U.S. iPhone 5s users can’t ‘take the fifth’ – September 12, 2013
Apple’s iPhone 5S with biometric identification: Big Brother’s dream? – September 11, 2013
Maybe this is why Tim is so string on personal security.
People should be in the streets over this.
Personal privacy and legal process for privacy is almost dead in this country.
I’m sure it will be the lead story on ☭NN.
If there is a search warrant, I don’t see how getting past the lock on a phone is any different from requiring the person to open the door of their house or the lock on a desk drawer.
..but an accused is not required to give a key to their desk drawer or house, the police have to break down the door or pry open the desk drawer…when you are forced to give your passcode to your smartphone you are being forced to give evidence against yourself….that is the gist and beauty of the Fifth Amendment.
it is blatantly unconstitutional…the burden of proof is always on the state, not the defendant….in America, you are presumed innocent until proven guilty by a jury of your peers.
Your last sentence is no longer true; The US Patriot Act now has primacy over the US Constitution because it has largely replaced it as the basic law of the land. It’s just that replacement is not fully implemented until it has wound through the court system but, with so many judges siding with the State for whatever reason, it will take some time for the trajectory to fulfill itself completely.
The Patriot Act has been replaced with The Freedom Act, essentially the same thing but without the “nuisance” of having to have presidential approval for timely reinstatement.
Regardless, you are tragically correct, both acts are blatant violations of the Fourth and Fifth Amendments.
Your second sentence is just not true. The Patriot Act does not have primacy over the US Constitution, and it never will.
Only an Amendment to the Constitution will change that, and that’s not just a simple matter of “winding through the court system”.
“The Patriot Act does not have primacy over the US Constitution, and it never will.”
and yet, it does…secret FISA courts and all.
botty, I 5-starred your post, despite believing you hold some truly repugnant opinions in other areas, because you are absolutely correct on this. Being forced to provide _information_ the government does not possess in order that they can use that information against you is blatantly unconstitutional. It is the essence of the “witness against [your]self” clause of the 5th Amendment.
That said, people correctly point out (and you seem to agree) that the presumption of innocence has largely been disposed of for a large number of defendants (typically minority defendants or people who hold disfavored political views).
Yeah, I think we all agree with MDN on this one.
This is really a no brainer, of course someone can be forced to hand over their Apple iPhone password. All it takes is a fickle tweet and the Guantanamotrumpo Resort of the Bay is back to its full capacity.
It will be a great achievement, possibly known as the tweet for twat.