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Florida man won't be compelled to reveal iPhone passcode, yet

Big Al 23

Files are not testimony

Providing the password to an electronic device is not the same as providing testimony in a court of law. Proving a password to view the contents of an electronic device is no different than authorities searching a residence and finding documents. The info. contained on an electronic device is in essence just data files and in no way do they constitute sworn testimony. Those folks trying to escape scrutiny are trying to manipulate the fifth amendment protection to cover data which it clearly does not do. Authorities have every right to access the files of suspected criminals be they on person, on an electronic device or at a residence or work location just as with any normal investigation. The perps don't want to be convicted so they do all that they can to circumvent prosecution.

Richard 12 Silver badge

Re: Files are not testimony

One moment while I change your phone passcode behind your back.

The cops are on their way and will demand access to files on your phone.

Good luck.

That's just one of the scenarios where it doesn't matter whether you care about the privacy arguments.

There are many others.

aks

Re: Files are not testimony

In all cases, the accused is being forced to assist the accuser.

This is the underlying basis of the fifth amendment.

That's utterly different from searching a residence.

The basis of this particular case revolves around whether the authorities are looking for specific evidence that they have good reason to believe is present on the device or whether they're simply conducting a fishing expedition seeing what they can find.

Snorlax Silver badge
Facepalm

Re: Files are not testimony

@Big Al 23:"Providing the password to an electronic device is not the same as providing testimony in a court of law."

One of the fundamental principles of criminal law is that you have the right to keep your mouth shut to avoid incriminating yourself.

This principle applies when you're in an interview room with police - you can answer "no comment" to every question.

This applies also applies in court - you can choose to avoid cross-examination if it might show you in a bad light.

The reason why should be obvious. The prosecution must prove its case beyond reasonable doubt, and (generally speaking) there is no requirement for the accused to help them by incriminating himself.

TL:DR Tell the police and the judge that you *forgot* the passcode. Don't use fingerprint or face unlocking, use six digits instead of four for your passcode, and set your phone to wipe after ten failed attempts

DougS Silver badge

Re: Files are not testimony

Don't use a passCODE at all, use a password. Then even if attacks from companies like Cellbrite that are able to reset the flash to enable them to brute force it (the hardware changes in the latest iPhones should make such flash reset based "replay attacks" impossible) still work there's no feasible way for them to brute force your password. Unless, you know, you used "password" I guess...

Charles 9 Silver badge

Re: Files are not testimony

"That's utterly different from searching a residence."

As I understand it, police CAN seize a key upon your person with probable cause or pursuant to arrest. Why is a password any different from a physical key?

Jess

Re:Why is a password any different from a physical key?

It's more like knowing where the key is.

John Brown (no body) Silver badge

Re: Files are not testimony

"Why is a password any different from a physical key?"

Because a password isn't a physical thing? Unless you wrote it down somewhere, in which the accusers can go search for it as with other physical evidence.

FriendInMiami

Re: Files are not testimony

Files may not be testimony, but a police agent seeking access to a phone may not have warranted reasons to search the phone, either. Our US Customs and Border Patrol will take away phones and laptops at airports without articulating why. If an explanation of what is sought cannot be made persuasively to a magistrate judge, sufficient to authorize a warrant, then certainly a traveler should not be compelled to unlock a device. That is why the fingerprint-unlock or facial recognition-unlock is so fraught with peril - search can be made by a cop who wants to look and see if anything is arguably criminal, without knowing in advance what could likely be there. Let a cop walk in your unlocked front door, and see what he finds walking through your house, without needing a warrant...

MachDiamond Silver badge

Re: Files are not testimony

"Proving a password to view the contents of an electronic device is no different than authorities searching a residence and finding documents."

Actually, no. In the US, for authorities to search a residence or other location (there are limits), a warrant is required and it has to state what is being sought and where it is believed to be. A judge has to be convinced that there is a good chance that what the police are looking for can be found and will be at the location named. Fishing is not allowed, nor is using a search warrant for one thing allowed to find something else. The case law is endless.

Did I miss what they are hoping to find by searching the files on the phone?

Step one: Don't put anything on your phone you don't want made public.

MachDiamond Silver badge

Re: Files are not testimony

"As I understand it, police CAN seize a key upon your person with probable cause or pursuant to arrest. Why is a password any different from a physical key?"

They still can't use the key to enter your residence without a proper warrant. If they then find a safe and believe what they are looking for is contained within the safe, the original warrant must specify the safe or an additional warrant must be obtained to break into the safe. The difference with digital files are that the "safe" is really safe and may contain virtual thermite if you try to break into them.

MachDiamond Silver badge

Re: Files are not testimony

"Let a cop walk in your unlocked front door, and see what he finds walking through your house, without needing a warrant..."

The officer would still need permission to enter your house whether the door was unlocked or wide open. They will ask if they can come in and if you give them permission, you change the scenario a lot. If they can see what appears to be criminal activity in the house from your open front door, that may also give them some leeway. If there is a coffee table piled high with a white powder, a scale and a pack of little zip lock bags in plain view, you're nicked.

DropBear Silver badge
Trollface

Re: Files are not testimony

"If there is a coffee table piled high with a white powder, a scale and a pack of little zip lock bags in plain view, you're nicked."

Well, there go my plans to start selling bread in DIY kit form...

Charles 9 Silver badge

Re: Files are not testimony

"The officer would still need permission to enter your house whether the door was unlocked or wide open. They will ask if they can come in and if you give them permission, you change the scenario a lot. If they can see what appears to be criminal activity in the house from your open front door, that may also give them some leeway. If there is a coffee table piled high with a white powder, a scale and a pack of little zip lock bags in plain view, you're nicked."

As I understand it, there are conditions. First, if a suspect is arrested IN the house, then a basic search can be conducted as part of the arrest, and evidence pertaining to the offense cited can be collected (eg. if a druggie is arrested in his house, then contraband found inside is germane and can be taken as evidence. Same for a suspect car if stopped while driving it and subsequently arrested). If evidence not germane to the arrest is found, a separate search warrant would be needed. Dragnet and Adam-12 (both based on actual LAPD incidents) touched on searches.

Captain Toad

Re: Files are not testimony

Can a court compel you to unlock a personal safe and allow law enforcement to gather evidence from it?

No, they can't. But there is nothing stopping them from breaking into the safe (if they can) to find evidence.

This is the same situation, except the device is purely electronic. Law enforcement are free to attempt to access the device but should not be allowed (under any statutes) to compel the owner to unlock it.

casaloco

Re: Files are not testimony

This isn't the police using your key to search your house. It's the police legally demanding you tell them where the body is buried, and sending you to jail if you don't tell them. Or don't know.

Snorlax Silver badge

Re: Files are not testimony

@Charles 9:"Why is a password any different from a physical key?"

A password isn't tangible (unless you wrote it down on a Post-It).

It's something you KNOW, rather than something you POSSESS.

A court can't issue a search warrant for your brain. Yet.

MachDiamond Silver badge

Re: Files are not testimony

"Well, there go my plans to start selling bread in DIY kit form..."

and here I am a huge DIY bread fan. :)

Ok, back to reruns of The Great British Bake Off. That bread lion was awesome.

Charles 9 Silver badge

Re: Files are not testimony

"No, they can't. But there is nothing stopping them from breaking into the safe (if they can) to find evidence."

But what if they learn the safe is booby-trapped and will self-destruct if anyone other than the suspect opens it? NOW can they compel the suspect to open it under threat of Destruction of Evidence?

Guess how this can apply to an iPhone with a failsafe?

onefang

Most of the article was about the legal to and fro. Not enough info about the actual case. Is this person a minor or a grown man? Was this minor / man the driver? Why is the contents of the phone needed, what relevance does it have to the car crash? What relevance does a pending iOS update have to the need for the passcode/words?

Jamesit

"Is this person a minor or a grown man?"

The article says:

"The defendant, a minor referred to as G.A.Q.L in his petition against the State of Florida"

onefang

Yes, but the title says "Florida man...", hence my confusion.

katrinab Silver badge

If a minor is being described as a "man", that means he is black, otherwise he would be described as a "boy" up until about age 25.

Snorlax Silver badge
Headmaster

@onefang

@onefang:"Yes, but the title says "Florida man...", hence my confusion."

Florida Man is a term used to describe somebody who's in trouble with the law for a stupid or unusual reason.

Waseem Alkurdi

Maybe he was a minor at the time, and is now an adult, given how time crawls in a court?

onefang
WTF?

I'll admit that I had just skimmed the original El Reg article, all that legal stuff bored me, and I was more interested in answering my questions above. So I may have missed this bit if it was there. I've now read a bit more from the recent Ars Technica article covering the same case. To quote that article -

"Investigators argued that they needed the iTunes password so that the phone's firmware could be updated prior to actually searching the phone."

That makes no sense to me. Um, see icon ->

John Brown (no body) Silver badge

Re: @onefang

"Florida Man is a term used to describe somebody who's in trouble with the law for a stupid or unusual reason."

And there was I thinking it was a sub-species description, something similar to Java Man or Neanderthal Man, or maybe more like Piltdown Man.

This post has been deleted by its author

A.P. Veening

stupid or unusual reason

The ususal, stupid reason for being on trouble with the law in Forida is being black.

Snorlax Silver badge

Re: @onefang

@John Brown (no body):"And there was I thinking it was a sub-species description..."

Some people do believe that Floridians are a fork on the evolutionary tree.

See also: Floriduh

ratfox Silver badge

What could possibly be the file that they want to access so much, and why is it relevant to a car accident?

Duffy Moon

"What could possibly be the file that they want to access so much, and why is it relevant to a car accident?"

I assume they want to find out if he was using the phone at the time of the crash.

agurney

"I assume they want to find out if he was using the phone at the time of the crash."

They could get that from telco records.

Anonymous Coward
Anonymous Coward

> > I assume they want to find out if he was using the phone at

> > the time of the crash

>

> They could get that from telco records.

Not necessarily. Making/receiving a call/text, no problem - maybe less easy for receiving? Unsure what info is available at the telco, but making a call/text very easy from the billing records.

Difficult to know for some data-based activity though. Was a load of data going in/out something to do with voice, an incoming image he had no control over, an outbound one that he did, etc etc.

JohnG Silver badge

"What could possibly be the file that they want to access so much, and why is it relevant to a car accident?"

Video, taken in the period up to the crash?

John Brown (no body) Silver badge

"I assume they want to find out if he was using the phone at the time of the crash."

If he's a minor, then if he was driving at the time, surely that's already a crime? What's a minor in the US and what is the legal driving age?

MachDiamond Silver badge

"If he's a minor, then if he was driving at the time, surely that's already a crime? What's a minor in the US and what is the legal driving age?"

Roughly 16yo, but it varies from state to state. A driver "under instruction" can be 15 to 15-1/2 in some places. In some predominately rural areas there are restricted licenses for farm activities since driving on an official road might be necessary to get from one section of a farm to another.

Charles 9 Silver badge

"Minor" is legally defined in the US as those below the age of adulthood (set at 18 in this case). It's legally defined because of privileges (voting) and duties (military service, self-determination) that apply at that point.

Most states set the minimum legal driving age at 16 (for historical reasons), but some states qualify this by not allowing unattended driving until they're 18.

John Brown (no body) Silver badge
Thumb Up

Thanks for the replies.

gnasher729 Silver badge

There's one thing that should be changed in the article (after checking, obviously): I don't think anyone can be forced to _reveal their password_. They can (or maybe cannot) be forced to _unlock their phone_. Yes, by entering the password, but nobody has the right to see the password they enter. Of course if the phone locks itself after some period of inactivity, they may be forced to unlock it again.

Alister Silver badge

I don't think anyone can be forced to _reveal their password_.

Not in the US, maybe, but in the UK, you most certainly can.

gnasher729 Silver badge

"Not in the US, maybe, but in the UK, you most certainly can."

I'd like to see a link for that. I assume you actually _read_ what I wrote beyond the first sentence and didn't miss the fine distinction between revealing your password and unlocking a device.

Alister Silver badge
Anonymous Coward
Anonymous Coward

Pedant time. You cannot be forced to. There are significant consequences if you don't though.

AndrueC Silver badge
Meh

Yeah it lies at the heart of the difference between the two legal systems. The US is (supposedly) concerned with protecting the individual whereas the UK system is concerned (supposedly) with finding the truth.

This is why the US has strong legal privilege protections whereas the UK has barely any. Also why in the US tainted evidence can result in a case being thrown out whereas in the UK tainted evidence is still admissible.

cynic56

"whereas the UK system is concerned (supposedly) with finding the truth."

Glad you added "supposedly". Although it probably needed 24 point, bold, capitals, underlined with flashing lights and a brass band accompaniment. Truth and justice rarely encounter our legal system these days.

Chozo

Puzzled

So why can't we have a second password for "Opened Under Duress" situations as is common with many building access control systems?

DougS Silver badge

Re: Puzzled

If the government is held to have the right to force you to divulge a password (which IMHO totally destroys the intent of the 5th amendment) then they'd make a felony for putting in a duress password to erase the phone so it wouldn't be a way around it.

SharpOB

My passcode is a number, but I do it based on a pattern of going down the side until halfway, and then moving along one and then going down the side.

I can't recall the numbers, just the order that you press them based on the location. If I was asked to provide the numbers, I would be unable to do so.

Carpet Deal 'em
Boffin

> If I was asked to provide the numbers, I would be unable to do so.

Which isn't what they're asking for. The claim is that, since they know you know how to unlock the device, they have the right to force you to do so without that pesky fifth amendment getting in the way. You could be forgiven for misunderstanding that bit, though: this is some of the finest hairsplitting in human history.

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