Miami Judge Says Compelling Password Production Isn't A Fifth Amendment Issue

from the password:-selfincriminate dept

Fri, May 5th 2017 1:30pm — Tim Cushing

Another small dart has been lodged in the thigh of the Fifth Amendment by the courts. A Miami, FL federal judge has ruled that defendants in a sex video extortion case must turn over their phones' passwords.

In a case being closely watched in legal and tech circles, Miami-Dade Circuit Judge Charles Johnson ruled that Hencha Voigt, and another man charged with being her accomplice, must unlock phones police believe were used in a plot to extort a social-media celebrity.

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 jurisprudence related to passwords and the Fifth Amendment is all over the place, but it seems to be leaning towards treating device passwords and pins as "non-testimonial." Other decisions have resulted in the indefinite jailing of defendants on contempt of court charges for refusing to turn over passwords. Arguing against self-incrimination hasn't found many judicial supporters, but the issue is far from settled.

Indefinite jailing may be on tap for these defendants as well. They've been given two weeks to comply with the order, with the "or else" being a stay of indeterminate length at the local lockup. The Miami judge appears to be following state precedent, citing an earlier case where the state appeals court ruled in favor of the government, ordering an upskirt photographer to turn over his password to prosecutors.

This decision will be appealed. But the decision cited by this judge appears to indicate this will only delay the inevitable. Sooner or later, this issue will have to be addressed by the Supreme Court, but I wouldn't hold my breath waiting for it to happen. The Supreme Court frequently takes a pass on timely issues, leaving circuit appeals courts to do most of the heavy lifting. There really hasn't been enough Fifth Amendment cases of this type in federal appeals courts to press the issue. So far, the only thing that's been made clear in multiple cases is fingerprints are worse than passwords when it comes to locking law enforcement out of phone contents.

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Filed Under: 5th amendment, hencha voigt, miami, password

45 Comments

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Ninja (profile), 5 May 2017 @ 1:04pm

"There really hasn't been enough Fifth Amendment cases of this type in federal appeals courts to press the issue."

And it's okay that there are people locked up indefinitely because they don't want to give their passwords regardless of their motives. Nothing pressing here, jails are being paid for their indefinite inmates.
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Anonymous Coward, 5 May 2017 @ 1:43pm

How else can it be described
If all suspects are innocent until proven guilty, then the court would not be able to compel them to turn over a password without the guilty verdict. If the prosecution can't make their case without the defendant supplied password, then they don't have a real case.
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Anonymous Coward, 5 May 2017 @ 1:43pm

Re:
so.... you don't want to be tough on crime?

even though much of it is imaginary?
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That Anonymous Coward (profile), 5 May 2017 @ 2:01pm

“For me, this is like turning over a key to a safe deposit box,” Johnson said.

One does wonder how Judges would feel if we demanded their passwords to poke around to maybe find something bad.

"must unlock phones police believe were used in a plot to extort a social-media celebrity."

Perhaps requiring more than belief would be a better system.
If there is no other evidence than what they believe to make the case, it seems like a very weak case.

One wonders if people started to consider they could be compelled to unlock phones, tablets, computers would they stop using them as much. They are external brains, where we keep stuff to keep track of but some courts keep saying you need to open up & expose things you intended to keep private because of belief.

Its a messy area, but even the courts can't seem to agree upon anything.
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Anonymous Coward, 5 May 2017 @ 2:05pm

differences
Passwords aren't just keys. They can contain information. It could be self-incriminating if his password is "ImGuiltyOfExtortion" or contained the name (or even the birth year) of his accomplice.
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Anonymous Coward, 5 May 2017 @ 2:08pm

legal question
Question for those that know more about the law than me (i.e. basically everyone) - Can defendants be compelled to reveal a safe-deposit key that the police can't find?
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Anonymous Coward, 5 May 2017 @ 2:13pm

1) This should definitely be a 5th amendment covered issue.

2) Even if it wasn't, how they fuck can they jail you indefinitely for it? If you are legally obligated to comply, and you don't, you should then be charged with like "contempt of court" and sentenced to some small finite term for that offense.
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Anonymous Coward, 5 May 2017 @ 2:14pm

Re: legal question
I know you can't be forced to tell them where the bodies are.
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Anonymous Coward, 5 May 2017 @ 2:15pm

Re:
And

3) What the fuck would happen to some one who actually forgot a password. Is forgetting a password a life sentence now? WTF?!
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Anonymous Coward, 5 May 2017 @ 2:18pm

Re: Re:
No one's ever going to be able to prove that a person does or doesn't remember a password. You can show they probably accessed it within some time frame. But with how slowly the wheels of justice turn, seems like it would usually be at least a few months before they'd be compelled by a judge to give it up. That seems like plenty of time to have forgotten a password, especially if you had just changed what the password is recently when you got arrested.
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Anonymous Coward, 5 May 2017 @ 2:58pm

Re: Re: Re:
Well, we have moved from innocent until proven guilty to guilty upon accusation... so...
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Rapnel (profile), 5 May 2017 @ 3:16pm

Yeah, well, it's not a physical thing like a "key to a safe deposit box" is it? It is a piece of information that is stored in your mind ergo if pleading the fifth then they may use all means at their disposal to retrieve the information other than the words you need not offer.
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John, 5 May 2017 @ 3:24pm

Re: legal question
__

Criminal defendants have the absolute "right" not to answer ANY questions at all from judges, prosecutors, police, or even their own lawyers.

This is bedrock Anglo-American law for centuries, and embodied in the 5th Amendment. This Miami judge should be immediately impeached.

The famous "Miranda Ruling" ("You have the right to remain silent" ...) was all about this basic 5th Amendment right.

The US Supreme Court ruled that defendants can not be compelled to provide "Communicative Evidence" (expressed mental information)... as opposed to 'physical evidence' (fingerprints, etc).

There should be no controversy whatsoever on this, but American courts are a circus now... and the Bill of Rights merely a quaint historical curiosity.
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Mario Machado, 5 May 2017 @ 3:25pm

Caveat: Judge Johnson is a state court judge.
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Anonymous Coward, 5 May 2017 @ 3:28pm

I see a way out of this
OK, so the 5th should keep you free from compelled testimony that can implicate yourself. And so unlocking the phones to provide potentially self-implicating evidence would violate the 5th Amendment. But this case is interesting because there are two defendants, each one has a cell phone with both halves of their text messages confirming their criminal conspiracy. There is no protection for the received text messages on each phone. What if the unlocking is compelled in camera ONLY, and the judge reveals only the text messages not protected by the 5th, but discoverable under the "Third party doctrine"? Then each defendant avoids self-implication while providing evidence against the other.
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John, 5 May 2017 @ 3:38pm

incompetent
he's incompetent no matter who hired him ... and should be immediately removed from the bench and disbarred
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Alphonse Tomato (profile), 5 May 2017 @ 3:53pm

Re: legal question
Doesn't really matter. The box can be opened without a key if they choose. They drill the lock.
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Roger Strong (profile), 5 May 2017 @ 4:10pm

Re: Re: legal question

The US Supreme Court ruled that defendants can not be compelled to provide "Communicative Evidence" (expressed mental information)... as opposed to 'physical evidence' (fingerprints, etc).

Take AC's questing a step further: Police want to search your house, and they have a warrant. You have keyless locks; you need to type in a pass code to get in. You refuse to hand it over.

Now it's 'communicative evidence' (a pass code) they're demanding, not 'physical evidence' (a key). Can you be compelled to hand it over?

If the answer is 'Yes', then why is a phone different?

If the answer is 'No', then a lot of people are going to be buying keyless locks.

If the answer is 'No, but they can kick the door down', then the answer is 'No' for a phone too. Your crime isn't that of refusing to hand over a password; it that of having a door that can't be kicked down.
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Anonymous Coward, 5 May 2017 @ 5:34pm

Re: Re: Re: legal question
Police want to search your house, and they have a warrant. You have keyless locks; you need to type in a pass code to get in. You refuse to hand it over.

In this circumstance, you are under no obligation to hand over the pass code (or the key, if you have a regular lock). You have the choice to either:
1. Hand over the key/passcode and allow the police to open the doors.
2. Open the doors yourself to give the police access.
3. Refuse to open the doors, get arrested for failing to comply with the warrant, and the police will break into your house using any means at their disposal.
That is, the answer is "No, but they can arrest you for failing to comply and then kick the door down."

It should be noted that there are no statutory limits on the length of sentencing for failure to comply (in most states, I won't claim to know every state's stance on this).
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John, 5 May 2017 @ 5:37pm

Re: endless legal imaginings
NO ... you can't be compelled to reveal the code to keyless-lock doors !

NO ... you can't be compelled to reveal your cell phone password !

The law and legal principle are very simple to understand. If you are a criminal defendant/suspect ... you can not be compelled to reveal anything in your mind... or to say anything at all.

Confusion arises because cops/prosecutors/judges routinely violate the 5th Amendment (without consequence)... so now two generations of Americans think it is OK (or can't figure out why it's not OK).

(P.S. cops luv breaking down doors, with or without warrants. They will do whatever it takes to enter locations they want to to enter ... bulldozers, explosives.
Most doors are easy to break thru, no matter what kind of locks are used)
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Anonymous Coward, 5 May 2017 @ 5:47pm

Re: no way out
Any such compulsion by a judge is blatantly illegal. You've been completely snowed by government & Hollywood legal BS
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Anonymous Coward, 5 May 2017 @ 5:59pm

they already know what is on the phone but how they found out is illegal so they have to get to the evidence, another way
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Anonymous Coward, 5 May 2017 @ 6:45pm

Re: differences
Oh my God, that's brilliant.
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Bergman (profile), 5 May 2017 @ 8:32pm

Re: Re: differences
Or perhaps simply "IDidIt"
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bluicebank (profile), 5 May 2017 @ 8:35pm

I forgot my password
Considering the number of times (provable) for me and many others forgot a password, why would this not be a good defense? Is it not safe practice to use different passwords for various access? And thus more liable to need a reset?

Regardless, it would not be that difficult to program a variation of a "dead man's switch" on a sensitive passcode, and if you're really paranoid, execute a time-command to brick the phone. "Because I'm sorry, your honor, you can have my password, except I was foolish enough to install software I found in the internets that as of last Tuesday turned my phone into a shiny object."
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Bergman (profile), 5 May 2017 @ 8:37pm

Re: Re: endless legal imaginings
That bit about doors being easy to break through is very true. They aren't all that secure to begin with, and police have all kinds of tools for defeating them.

But that's standard doors. Just installing a pocket door with the same level of security as a standard door will triple the time someone needs to break through it.

If you want to really deter people from kicking down your door, put a couple chambers in the door filled with chemicals that are hypergolic and high explosive when mixed. The guy who kicks your door loses his leg, the guy who swings the battering ram loses his arms.
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Bergman (profile), 5 May 2017 @ 8:42pm

Re: Re: legal question
There are ways around drilling, ranging from the annoying (glass plate that shatters to freeze lock) to the hazardous (pepper gas between glass plates) to the downright lethal (lock ejects burning cloud of thermite when glass plates are broken).

Even if you don't do something unpleasant to the safe cracker, self destruct systems for the safe contents are a thing that exists.
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That Anonymous Coward (profile), 5 May 2017 @ 11:21pm

Re: differences
How did you get Steeles password?
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Paul Brinker, 5 May 2017 @ 11:32pm

Re: Re: Re: endless legal imaginings
Do Not trap your doors! Even doing stuff like putting cement in the door is generally a bad idea, full traps are going to send you to jail for far more then what they were originally at your home for.
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Anonymous Coward, 6 May 2017 @ 12:48am

Re:
Because one indefinite detention without charge or evidence isn't enough reason for them to get involved?
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Anonymous Coward, 6 May 2017 @ 12:52am

Re: Re: Re: differences
I think you mean "IfIDidIt"
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Anonymous Coward, 6 May 2017 @ 1:34am

Five and Six
Five
"nor be deprived of life, liberty, or property, without due process of law" (it could be argued that passwords are intellectual property).

Six
"In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial." (this seems to argue against the indefinite detention that the government loves so much).

Oh and the police Hate this part

"and to be informed of the nature and cause of the accusation"

Amendment V. (five)
No person shall be held to answer for a capital, or therwise 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.

Amendment VI. (six)
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of
the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining wit-
nesses in his favor, and to have the Assistance of Counsel
for his defence.
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Y.A.O.O.G., 6 May 2017 @ 11:29am

Miami Judge gets it wrong!!
Sorry, but handing over passwords is in fact breaking the 5th amendment, period. Anyone who disagrees with that fact is a communist fascist, or Trump follower (synonym).

It's no different than a lawyer asking a loaded question and you plead the fifth as the answer may incriminate yourself.

The fact that the questions haven't been asked yet doesn't change the fact that answers that "might" be found on the device could incriminate them.

Especially the ones that would be placed on the device after it was "unlocked" by the criminal alphabet agencies.
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sumquy, 6 May 2017 @ 2:19pm

Re: I forgot my password
actually it would be very difficult to do that against a determined attacker because they are not going to use the actual phone. they will make an image of the hard drive and then run that in a virtual phone program in which they have control over individual processes. the encryption key unscrambles the content and makes the whole drive readable, but it is not an executable program and even if you try to make it one, it is still just a process that can be halted with the right commands.
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Mike-2 Alpha (profile), 7 May 2017 @ 12:05am

With the Possible Exception of Richard Nixon
The difference is that people don't keep safety deposit boxes full of transcripts or recordings of conversations they've had dating as far back as they've had the box.
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The Wanderer (profile), 7 May 2017 @ 5:49pm

Re:
The standard counter to that is that the password itself is not information that would tend to incriminate the speaker; the information which would tend to incriminate is locked away behind the password, but the speaker is not being required to provide that information, only the password itself.

This seems a little twisty, but no more so than many lines of legal reasoning on which perfectly good jurisprudence (and good results) is based. It's still possible to argue against it, and people do, but many judges seem to not be accepting those arguments.
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SteveMB (profile), 8 May 2017 @ 5:58am

Re: Re: Re: Re: differences
How about "[font size=1 color=C0C0C0]If[/font][font size=8 color=000000]IDidIt[/font]"
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Anonymous Coward, 8 May 2017 @ 5:59am

Re:
"social-media celebrity"

Gotta set yer priorities somewhere
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facist mofo, 8 May 2017 @ 6:06am

I really proud that a judge sitting on a peninsula in between the Gulf and the Atlantic can issue an order that allows law enforcement officers of the State of Florida to conduct what appears to be clearly unconstitutional.
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nasch (profile), 8 May 2017 @ 7:50am

Re: How else can it be described
If it's testimony, they can't be compelled. If it's producing evidence, the absolutely can be compelled.
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nasch (profile), 8 May 2017 @ 7:57am

Re:

One wonders if people started to consider they could be compelled to unlock phones, tablets, computers would they stop using them as much.

Nope.
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nasch (profile), 8 May 2017 @ 11:47am

Re: Re: endless legal imaginings

NO ... you can't be compelled to reveal your cell phone password !

Where are you getting this information? Even if you just read the headline, you can see it's not that clear cut.
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nasch (profile), 8 May 2017 @ 11:49am

Re: Re: I forgot my password
My understanding is that does not work with all phones. There was good information uncovered on this with the iPhone unlock debacle, where part of the decryption key is baked into the hardware and decryption cannot occur outside the device.
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nasch (profile), 8 May 2017 @ 11:50am

Re:
That's how contempt of court works. You can be jailed until you are no longer in contempt, and your constitutional rights are not relevant because you are in charge of how long you stay in jail.
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My_Name_Here, 9 May 2017 @ 9:24am

This post will be blocked for a while
But hey, I'll take a kick at this anyway, just for the sake of history I guess.

A phone password (mostly a pincode or action) isn't in itself any more incriminating that a key to a locked door or the combination to a safe. It's just a method by which a door or object is opened.

The fifth amendment does not permit someone to hinder prosecution. It allows them not to say anything that might incriminate them, but it does not allow them to not unlock that door, to not produce that safety deposit box key, nor deny access to a locked file cabinet, storage area, or safe.

It is also reasonable for, while in the process of executing a valid search warrant, to detain the suspect until all areas named in the warrant are opened and investigated. If that included a safe that might take hours (or even a couple of days to open, if they need to bring someone in from the outside) it would be reasonable to detain the subject while that search "continues". The subject of the warrant could, if he or she desires, produce the combination at any time and the process would be quicker.

Now, it would be argued that a properly secured phone could only be opened after much effort, and perhaps a billion years of computer time. That would be fine, you can stay in custody until such time as the search is completed.

As for forgetting the password, let's be honest here: You type the pin code on your phone or make the unlock action dozens of times a day. It's incredibly unlikely (short of brain injury) that you would suddenly forget it. For something you access more rarely (say a backup hard drive) you might have a better change of claiming that you don't have the really long encryption key handy. But the phone that you use day in and day out and have to unlock all the time just isn't a very good spot to argue from.

Those who suddenly "forget" how to unlock their phone are just hindering prosecution and obstructing justice. There really is no excuse.
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