Florida judge orders reality TV actress to unlock Apple iPhone in ‘sextortion’ case

“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

43 Comments

  1. 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…

    1. 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.

      1. 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.

  2. 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.

Reader Feedback

This site uses Akismet to reduce spam. Learn how your comment data is processed.