“A reality TV actress accused in an extortion case involving sex videos must give up her iPhone password to police, a Miami judge ruled on Wednesday,” David Ovalle reports for The Miami Herald.
“In a case being closely watched in legal and tech circles, Miami-Dade Circuit Judge Charles Johnson ruled that Hencha Voigt, and a man charged with being her accomplice, must unlock phones police believe were used in a plot to extort a social-media celebrity,” Ovalle reports. “He ruled that unlocking their phones would not violate their constitutional right against self-incrimination. ‘For me, this is like turning over a key to a safe-deposit box,’ Johnson said.”
“The decision was the latest in the ongoing struggles of the courts to decide how much access law-enforcement can have to smartphones, tablets and hard drives, many of them locked with sophisticated encryption,” Ovalle reports. “Across the country, judges have split about whether to force defendants to open electronic devices. Florida’s Supreme Court has yet to weigh in on the issue.”
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, if not in this case, for a similar one, the U.S. Supreme Court will likely have to weigh in on this issue.
SEE ALSO:
Miami sextortion case asks if a suspect can be forced to hand over Apple iPhone password – April 28, 2017
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
Just as anyone could say, “I lost the key.” They can say, “I forgot my password.”
Or you could also babble along giving them 10 incorrect passwords and have the device erase itself. 🙂
Forcing someone to incriminate themselves, to testify against themselves????? Land of the free, home of the brave. Might makes right.
I think there is a good reason why people who are much smarter legal minds than us seem to be split on this one.
At the bottom of it, the point is what constitutes a testimony. Does unlocking a safe by punching a combination into a keypad equal (and amount to) providing a sworn statement? Is anything you say, or anything that comes out of you that can be written down into a permanent record, considered a testimony? If yes, then the mechanism of this is clear — forcing a person to enter a numerical combination into a device that may result in provision of incriminating evidence could be protected under your 5th amendment.
Clearly, many judges aren’t convinced. There is a lot of legal precedent for compelling people to provide access to their property in order to get to the evidence. Most of the time, the legality of it hinged on the probable outcome: if there is a strong expectation that the property (a safe, locked box, trunk of one’s car) contains material evidence, in vast majority of cases, this was enough to compel the owner to unlock.
We all know perfectly well that to call tapping a six-digit number being a witness is disingenuous. Your 5th amendment says (from MDN’s quote above):
…nor shall be compelled in any criminal case to be a witness against himself, …
This amendment was adopted very long time ago, hence the simplicity and generality of its language. No wonder why great many judges are split over the interpretation. Its essence, as it was written, means that you don’t have to answer a question in a criminal trial if your answer may incriminate you (i.e. produce criminal evidence against you). Unlocking a door is doubtfully what lawmakers had in mind when they drafted the amendment, and judges seem to agree.
So, is unlocking a phone same as unlocking a door? If not, is the only difference the fact that the process of unlocking it requires a sequence of numbers, that in its form, can be converted into a written record and declared a testimony?
I’m not so sure.
I think the difference is whether the act of providing access (unlocking) is incriminating. For example, if you are asked to prove that a device found at the scene of a crime sans fingerprints is yours, which you claim is not, successfully unlocking the device will mean you lied and are in contempt of court as well as providing reasonable evidence placing you at the scene. The content of the device in that case does not matter.
Why would anybody deny that the device was theirs and then provide the password? Surely anyone who is capable of coherent thought would either tell the truth about both or lie about both.
No court is going to jail someone for contempt because they failed to provide the password unless there is already persuasive evidence that the person owns the phone. Once that threshold has been passed, knowing the password no longer has any incriminatory effect (aside from allowing access to the contents of the device). Again, the search of the device is a Fourth Amendment issue and does not involve the Fifth.
That said, I often said during my thirty years as a prosecutor that we would be in big trouble if criminals WERE smarter.
In that case it would probably be TouchID unlock.
The point I was trying to make was that the act itself is incriminating that is what the Fifth Amendment protects. If the device is known to be the user’s and the act of unlocking it is not in itself incriminating it is not protected by the Fifth.
wrong, wrong, wrong.
Belligerent Asswipe has declared his penetrating analysis. That is sufficent. No further discussion is needed.
Speak of ass wipes, you petulant shit stain. I see that your chronic PMS hasn’t abated.
Oh dear! So sorry for insulting the master of constant negativity… i.e. Belligerent Asswipe.
I’ve made him the offer before — if he stops using name-calling, belittling and nastiness as his go-to reaction to different opinions, I’ll be happy to stop insulting the senile little jerk.
The law isn’t as clear on this as one might hope. It is quite clear under the Fifth Amendment that one cannot be forced to testify against oneself.
However, it is pretty clear that “testimony” does not include such things as giving a non-invasive biometric sample like a fingerprint or a photograph for facial identification. Such samples (as, indeed, invasive samples like blood draws) are covered by the Fourth Amendment, not the Fifth. With a warrant or court order, a suspect can be forced to give a sample, even if it might be used as evidence against him later. In some cases, like routine booking photographs and fingerprints, a warrant is unnecessary.
People can also be required to give a handwriting sample for comparison with an exemplar, even though that might provide incriminating evidence. Similarly, they can be required to give a voice sample, either for scientific voiceprint analysis or for an “auditory lineup” with a witness. The fact that the person is being required to write or utter words does not make it a Fifth Amendment issue.
Passwords similarly fall into a grey area, since they can clearly lead to the discovery of incriminating evidence but are not such evidence themselves. The password may be a word in some language (or not), but its utility is not related to the word’s meaning in communication. Gibberish is not communicative, and is therefore not testimonial.
So, it is not clearly established whether the Fifth Amendment, as well as the Fourth, is implicated in the collection of a password. The Supreme Court of the United States might come down either way, particularly given its current conservative, pro-law-enforcement composition.
What is your password? The answer is clearly responsive testimony of something only the person answering can know and it can be testimony against that person’s interest.
“…nor shall be compelled in any criminal case to be a witness against himself. . .”
Providing the answer to that question is clearly being required to being a witness against himself especially when any search is clearly a fishing expedition because the authorities cannot know what is on that iPhone. You cannot even be compelled to open your own locked safe, if it is locked with a combination lock. It is up to the authorities to open it by whatever means are available to them, even hiring a professional safe cracker if necessary to do it.
How can any court compel that testimony? Hot irons? Truth serum? Torture by other means? Waterboarding? Threaten to kill his loved ones? Where does such pressures stop? Ergo, it is protected under the Constitution.
A court would compel the testimony—if it is testimony, which it may not be—exactly the same way it compels compliance with any other judicial order. It would bring the person before the court and directly command compliance. On further refusal, it would then find the person in contempt and commit them to jail until they purge the contempt by complying with the order. In my state (Texas), the person can be kept in custody until they have served the same time that is provided as a sentence for the offense if convicted.
That procedure was centuries old when the Constitution was adopted and has continued without interruption ever since. If it were unconstitutional, some court would have said so at some point in the last 230 years. You may find it distasteful, but the Constitution is not trumped by good taste.
Who says you can’t be forced to unlock a safe? If a judge orders you to do it, you can either comply or sit in jail until the Supreme Court finally gives us some guidance on that question. At this point, the only direct language from SCOTUS making the safe-with-a-key versus safe-with-a-combination distinction is in a 1988 DISSENT by Justice Stevens.
If the judge had ordered the actress to answer the question, “What is your password?” it would clearly have been compelled testimony in violation of the Fifth Amendment. He avoided that by instead ordering, “Unlock your phone.” The action of unlocking the phone might be the equivalent of answering the question (some courts have said so), or it might not (other courts have said that). My guess is that we are going to find out someday soon, when the Supremes finally speak directly to the issue.
Not a lawyer, but I do find your arguments fascinating.
Clearly there is information we offer to the public domain just by stepping outside. Our voice, our likeness, our fingerprints, even our DNA (through skin and hair residue) is left in public. That information is fair game.
The Fourth is clear enough, with a warrant they can search. Asking them to help them search is self-incrimination, should incriminating evidence be found.
But to require information stored in my head is another matter entirely. This is outrageous and really people should be marching over this.
I see your point of assisting a search being a possible way of self-incrimination. However, simply giving access to something does not constitute ‘helping’ to search but rather ‘allowing’ a lawful search given a properly issued warrant.
Hmmmm….
Let me dwell on that one. Thanks.
Okay. Dwelled on it.
The same could be said about answering a question. So no.
I do agree that with a properly issued warrant, the authorities can even cavity search me (believe me, I will be a hostile witness), but they do so using their own means. But for me to provide a password is tantamount to answering a potentially incriminating question. 5th applies.
TxUser brought up an interesting point in his comment above. If the order had been “give us the password” it may fall under the 5th. But if the order was ‘unlock the phone’ no password was revealed and if a proper warrant was also in effect wouldn’t the 5th not apply since nothing was uttered. Refusing in that case would probably constitute obstruction.
It probably will land one in jail. Miscarriages of justice are real world problems. But it’s conflicting laws and conflicting rights. As described it’s semantics as well. So is it a miscarriage of justice to penalize one for not opening on their own? I think it is, I could be wrong.
If there was no warrant involved I believe it would be a miscarriage of justice to penalize an individual for refusing access to the contents of an object that may provide evidence. If a proper warrant is involved penalties for refusal would not be a miscarriage of justice. This is part of the agreement of being a citizen bound by the laws of the country.
Discussing the ‘problem’ with a friend, she mentioned that if the conflict is the revelation of the password/key used to access the contents of the object, couldn’t the owner be ordered to simply remove the need for a password (remove all door locks) when surrendering the object into evidence? No password need be revealed (no key need be surrendered). In that scenario since the user was ordered to remove the ‘lock’, not reveal the ‘key’ providing ‘access’ no longer conflicts with a properly issued warrant by any interpretation of the 5th.
Point this loaded gun to your head and pull the trigger. It won’t kill you.
Evidence and testimony I.E., anything that comes from your mouth, is covered by the 5th, as long as it could be used against you.
If your BFF knows your password, they can be compelled to give it to the judge.
I have no idea who’s *DING*ing you down. You’re spot on!
I believe this is how I see it (at least, at the moment) . . .
• If you’re the subject of a criminal case in which there is probable cause granted in the form of a warrant to compel you to unlock a device, I think the law can force you to comply.
• I do not believe that there should ever be a back door or that a company, such as Apple, should ever be forced to weaken their products or violate the integrity of their relationship with customers.
• Which means that, if you’re ballsy, sure you can accidentally mess up entering the passcode and render the device useless and Apple would not be made to “fix it.” Now, whether destroying evidence is ever in your best interests I guess I don’t know. But can the court ask you to do it? Yeah, probably. Can it make you? Well, maybe not.
Clear as mud?
Why should I help the prosecution in any form?
They want in my safe, my phone, my secrets, then find a way on your own.
Yep.
If you refuse access after being presented with a lawfully issued warrant, wouldn’t you be charged with obstruction of justice?
Allowing access would be sufficient, no?
Depends on whether ‘access’ includes ‘entry’/’access to contents’. A warrant to search a premises doesn’t necessarily limit to the outside of the residence. Why wouldn’t a warrant to search the contents of a smaller ‘object’ be different?
The thing is giving a password is in itself testimony that establishes your control of and connection to the device. Without that data on a phone is just data on a phone.
Wow, looks like today I am smarter than a judge. Compelling one to give their password IS a violation of their constitutional right against self-incrimination.
You can, however, be compelled to give your fingerprint.
You may well be smarter than a judge. I disagree with judicial decisions all the time and certainly believe that I am right and they are wrong. Both of us are certainly smarter than some judges I have met.
The difference is that he can put you and me in jail for disobeying his orders. You and I can’t do squat to him.
Gollum (below) says the judge can pound sand. Again, he can’t make the judge do that, but the judge can, under proper circumstances, make him. That is the nature of any society that has rules to regulate group conduct that require individual compliance. If you want anarchy, move to Somalia; you won’t find it (yet) in America.
I didn’t say one didn’t need a good lawyer to disobey a judge. 🙂
You, with a good lawyer, CAN appeal a ruling.
I agree with you on your overall analysis of the legal situation, TxUser.
I also agree on the “anarchy” comment: the U.S. is a LOT closer to the authoritarian end of the political spectrum.
I’m concerned that this SCOTUS would come down in favor of the horrifyingly bad decision to compel people to provide their passwords. That’s pretty much game over for the 5th Amendment, considering how technology is going to be used to continue to supplement our brains.
Think about what a foolish decision like this would mean if we can eventually directly provide access to our memories. Even before then, this “give me your password” concept will definitely be abused against people with disfavored political positions.
Seems like you could be compelled to provide a password, with a warrant, if you had it written down. You could be compelled to produce that slip of paper. You could be compelled to provide your finger as a key to unlock a phone. You should not be compelled to verbally testify what the password is.
“I plead the 5th.”
A lot of thoughtless responses to this article. What’s in the water?
You don’t have to give a password.
EOS. Judge can pound sand.
It has to be lead poisoning. And surprise, that’s a theme-of-the-week in the news!
If the above commentators want to speak forth their password, they can! But the judge remains wrong. No one can be compelled to ‘testify’ their password.
As to handing over fingerprints, face, the color of eyes, a scan of the retina, DNA – That’s all legally obtainable without a citizen having to provide ‘testimony’ against themselves. Those are ‘something you are’ data that are relatively easy to collect without any testimony from a suspect.
Miami-Dade Circuit Judge Charles Johnson “ruled that unlocking their phones would not violate their constitutional right against self-incrimination.”
This dingbat judge is attempting to ignore the blatant meaning of the Fifth Amendment of the US Constitution. His misinterpretation is entirely WRONG. This is going to be interesting to watch.
In cases like this, it’s annoying that there isn’t already enough incriminating data. But the Fifth Amendment is a US citizen right and it’s there for each citizen’s protection; Tough if certain lazy/corrupt/brain-compromised judges don’t like it.
We’ve chattered here previously about the consequences of ‘Taking The Fifth’. Let’s watch what happens this time…
Derek,
As a philosophical question, I am inclined to share your outrage. However, the law is simply not as clear as you or I might wish it was. There is only a hazy boundary between testimony that cannot be compelled under the Fifth Amendment and non-testimonial evidence that can be compelled under the Fourth.
The notion that the distinction is that testimony is inside the witness’s head while non-testimony is outside is certainly appealing, but there is simply no direct ruling by the Supreme Court of the U.S. that makes that particular distinction.
In 1988, Justice Stevens made that argument in a dissent, saying that someone could be compelled to produce the key to a safe but not a safe’s combination. Obviously, a dissent has no precedential value. Various courts (including the Supremes in 1990) have subsequently alluded favorably to his distinction, but there aren’t any final decisions that rely on that as the boundary.
Some lower courts have flatly rejected it, saying that the boundary is between testimony as a verbal communication and evidence as non-communication, with passwords and safe combinations falling on the non-communication side because they exist as bare symbols without reference to a linguistic meaning.
Strict constructionists like Scalia and Gorsuch will look to the strict wording of the Fifth Amendment as it was understood by the Framers. I’m not sure how computer passwords would have been treated in 1789, so I’m not sure how judges with that criteria might rule today. They might follow Stevens, or they might follow the lower-court judges who have held that passwords are non-testimonial.
I hope you are right in your interpretation, but I’m not completely sure you are.
I was hoping you’d reply as I always appreciate your insights into law.
It’s going to be a bumpy ride.
I was just musing on possible Strict Constructionist or Original Intent approaches to this. The Framers didn’t have computers, but they were very familiar with encryption. America won the Revolutionary War in large part thanks to Washington’s spy network. Those brave and largely unknown souls used all the standard trade-craft approaches, like dead drops, code, cyphers, and invisible inks.
So, imagine an American in 1802 (post-Fifth Amendment) suspected of espionage. In his possession when lawfully detained were several small sheets of parchment covered with what appears to be gibberish. Without decryption, this is very suspicious but does not provide conclusive proof of spying. Absent other proof, the suspect cannot even be indicted, much less convicted. Decrypted, the treasonous messages will probably cause the suspect to be convicted and executed.
The investigators suspect that the spy network used a reasonably simple substitution cypher—simple enough for the spies to memorize. However, it would be prohibitively time-consuming to break it manually. There just isn’t enough encrypted material and context to provide sufficient clues for a quick solution using methods available in 1802.
The authorities petition John Marshall, Chief Justice of the United States sitting as a trial judge (as they sometimes did in those days), to order the suspect to reveal the cypher. He suggests that the Government offer the suspect immunity, thus taking the Fifth Amendment question off the table while still exposing the plot. The prosecutors refuse because they want a quick trial and a speedy hanging.
Will Marshall order the man to either hang himself or go to jail for life? I think not, and I suspect that a majority of the current SCOTUS would agree.
My only reservations hinge on the near-hysteria currently rampant around the whole area of Homeland “Security.” More than a few of our elected and appointed Powers That Be are convinced that public safety should always be allowed to prevail over individual liberty.
You and I know better, Derek, but we haven’t been appointed as Kings.
How is this different from a warrant to access the file cabinet in my home? Would you be as concerned if there was a video tape locked in a safe that was being compelled? What if access to my home was controlled by a numeric code rather than a key, or the file cabinet itself?
The government has long had the power to compel the production of information in your possession. I think its a bit of a stretch to argue that speaking the code to a law enforcement officer to allow them to access the device is somehow testimony under oath.
This has been for the most part a thoughtful helpful discussion! Kudos to those who participated in that way!