Military Appeals Court Says Demands To Unlock Phones May Violate The Fifth Amendment
from the ANSWER-UNCLEAR:-ASK-AGAIN-LATER dept
A decision [PDF] handed down by the Appeals Court presiding over military cases that almost affirms Fifth Amendment protections against being forced unlock devices and/or hand over passwords. Almost. The CAAF (Court of Appeals for the Armed Forces) doesn't quite connect the final dot, but does at least discuss the issue, rather than dismiss the Fifth Amendment question out of hand. (h/t FourthAmendment.com]
The case stems from a harassment case against a soldier who violated (apparently repeatedly) a no-contact order separating him from his wife. After being taken into custody, Sgt. Edward Mitchell demanded to speak to a lawyer. Rather than provide him with a lawyer, investigators asked him to unlock his phone instead.
Appellee invoked his right to counsel at approximately 10:50 a.m. Appellee's platoon leader signed a "Receipt for Pre-Trial/Post Trial Prisoner or Detained Person," and SSG Knight escorted Appellee back to his unit, where he remained in the company area and accessed both his Kyocera phone and iPhone.
[...]
In the office, Investigator Tsai informed Appellee of the verbal search and seizure authorization, and Appellee questioned the validity of verbal authorizations, asking to see a written one. Around this time, the commander left the office. Investigator Tsai told Appellee that verbal authorizations are valid and asked if Appellee had any cell phones on his person. Appellee then handed an iPhone to the investigators. Investigator Tsai saw that the iPhone was protected by a numeric passcode, and asked Appellee to provide it. Appellee refused.
At this point, this line of questioning should have been abandoned. Actually, it should never have begun without Mitchell's lawyer present. But the investigators apparently believed that asking, rather than ordering, Mitchell to unlock his phone made the whole thing consensual.
Investigator Tsai then handed the phone back to Appellee and asked him to unlock it, saying: "if you could unlock it, great, if you could help us out. But if you don't, we'll wait for a digital forensic expert to unlock it." Neither investigator knew at the time that Appellee's iPhone had two finger/thumb prints stored, and could have potentially been opened using "Touch ID capabilities." Appellee then entered his passcode and unlocked the phone: "[Appellee] was also required to permanently disable the cell phone's passcode protection. In order to do so, [he] was required to access the phone's settings and enter his numeric passcode (PIN) two more times to fully disable the phone's protections."
The military judge at the lower level suppressed the evidence, holding that Mitchell was in custody without requested legal representation at the time he unlocked his phone for investigators. The Appeals Court affirms the lower court's findings.
Under the circumstances presented, we conclude that the Government violated Appellee's Fifth Amendment right to counsel as protected by Miranda and Edwards. The Government does not contest that Appellee was in custody when he invoked his right to counsel while detained at the military police station. It is almost equally clear that Appellee was in custody in his commander's office when investigators asked him to unlock his iPhone.
The court also points out that simply asking nicely for an in-custody suspect to "help out" the government by possibly incriminating themselves doesn't make it any more Fifth Amendment-compliant, nor does it change the nature of questioning from an "interrogation" to "a couple of guys chatting about stuff with absolutely no criminal case-building implications."
This line of questioning qualifies as interrogation. The agents' initial request—“can you give us your PIN?”—is an express question, reasonably likely to elicit an incriminating response. The Government contends that a request for consent to search is not an interrogation, citing this Court’s reasoning in United States v. Frazier that “such requests are not interrogations and the consent given is ordinarily not a statement.” 34 M.J. 135, 137 (C.M.A. 1992). But asking Appellee to state his passcode involves more than a mere consent to search; it asks Appellee to provide the Government with the passcode itself, which is incriminating information in the Fifth Amendment sense, and thus privileged.
The court points out the simple act of unlocking a phone can be incriminating. It demonstrates for investigators and prosecutors the person holding the phone may well be responsible for any incriminating content found on it. It also implies ownership, making it easier to connect the person to the device (and the content contained).
By asking Appellee to enter his passcode, the Government was seeking an “answer[] … which would furnish a link in the chain of evidence needed to prosecute” in the same way that Hoffman and Hubbell used the phrase. Not only did the response give the Government access to direct evidence as in Hubbell, it also constituted direct evidence as in Hoffman. See Hubbell, 530 U.S. at 39–40 (“The documents were produced before a grand jury …. The use of those sources of information eventually led to the return of an indictment ….”); Hoffman, 341 U.S. at 488 (“[T]ruthful answers … to these questions might have disclosed that he was engaged in such proscribed activity.”). As even the dissent concedes, Appellee’s response constitutes an implicit statement “that [he] owned the phone and knew the passcode for it.”
Based on that, the court finds Mitchell's Fifth Amendment rights were violated by this in-custody request to provide a passcode. Unfortunately, the court considers this the end of its judicial inquiry.
In light of this holding, we need not reach the question of whether the Government directly violated Appellee’s Fifth Amendment privilege against compelled self-incrimination. We thus do not address whether Appellee’s delivery of his passcode was “testimonial” or “compelled,” as each represents a distinct inquiry.
Even though the ruling doesn't extend far enough to make passcodes worthy of Fifth Amendment protections, the judicial analysis at least shows providing passwords can create evidence to be used against the accused. This decision doesn't quite stretch that far thanks to the investigators' ignoring Mitchell's invocation of his right to an attorney, but it does the act of entering passwords can be considered self-incriminating.
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Filed Under: 5th amendment, caaf, compelled unlocking, edward mithchell, military, self incrimination, unlocking phones
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No sir, this isn't my phone that was in my pocket.
That is pretty weak, but that is the law, which sucks, as does most lawyers. No fucking wonder our system is so screwed up. You can't require someone to unlock a phone not because of privacy but because it proves you own the phone?
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Half Assed...again
For a large part, a quivering mass of non-commitment.
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This decision is not an unreasonable compromise; the key is different from the data
But just because nothing you are forced to say can be used against you does not mean you cannot be compelled to provide non-testimonial evidence that others will then utilize to testify against you. For instance, you can be forced to participate in a lineup, provide blood, hair, urine, DNA, voice etc. samples, have your fingerprints taken, etc.
In this sort of case, I could see as inadmissible the facts that data was encrypted, the fact that the accused had possession of the key, and the key itself; the prosecution will have to use other means to demonstrate the data belongs to you. But the data behind the key? I don't see that it's an inherently unreasonable position to state that the data is no more privileged than the contents of a file cabinet seized under warrant.
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Re: This decision is not an unreasonable compromise; the key is different from the data
Besides, if it is email or text messages they are looking for, they can always get them from the other end of the communication. Which goes to show how lazy investigators can get. There is no necessity to get into ones phone to get emails or text messages, it is just easier. If they want a contact list, isn't that available from the service provider? The third party doctrine, while despicable in concept, would give them that information.
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Re: This decision is not an unreasonable compromise; the key is different from the data
the data is no more privileged than the contents of a file cabinet seized under warrant.
I think that's kinda what Riley addressed: an arrest warrant lets 'em search your wallet, purse, or backpack, but a smartphone can contain so much information that it's like searching a house - and therefore requires its own separate warrant.
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Re: Half Assed...again
Sadly enough, I've gotten so pessimistic that having anything come even this close to making a clear, definitive statement made me positively giddy. At least they mentioned that someone might want to do something about the elephant standing in the middle of the room. Y'know. Eventually.
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Re: This decision is not an unreasonable compromise; the key is different from the data
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Off-Topic
Since there's no announcement up yet, I'll put this here:
Judge dismisses Shiva “I Invented EMAIL” Ayyadurai’s libel lawsuit against Techdirt
Congratulations. And a job well-done by your legal team.
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Re:
This isn't lawyers being dumb or the law sucking. This is how it should be. This is the kind of thing that can make the difference between "guilty" and "a reasonable doubt".
What sucks is that many other judges have ruled that you CAN be compelled to unlock a phone.
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I certainly support a warrant being required
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Specificity is a separate issue
But the question at hand is regarding your 5th amendment rights around the accused being compelled to hand over the encryption key; it's an entirely different part of law.
And it's not always going to be the case that investigators can retrieve messages from the other end; that pre-supposes they know the messages exist and to whom they were sent and/or the service provider has a copy.
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Re: This decision is not an unreasonable compromise; the key is different from the data
Please explain how your idiotic first 2 sentences differ from mine from a legal perspective.
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A dictionary would be a good start
Somebody being forced to testify against themselves (or having things they were forced to say introduced as evidence) is very different from being required to provide indirect assistance to authorities in ways that might not be favorable to you. I gave several examples of the sorts of assistance defendants are required to provide under well-established law.
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Re: I certainly support a warrant being required
Gotcha. I haven't seen anyone address the 'self incrimination by revealing anything known' issue in a long time - the old 'you have to surrender a key to a lockbox, but not the combination to a safe' thing. I used to see comparisons drawn between that example and the difference between passwords and biometrics.
By chance, does anyone know what happened with that argument?
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Re: Re: I certainly support a warrant being required
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Re: Re:
You can be forced to unlock a phone to prove who owns it but you can not be compelled to unlock a phone ... I think I mised something.
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And that's sad.
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Re:
A
Reasonable
Doubt
Simple possession = guilty is how you get screwed over because someone dropped an ecstasy pill in your back seat.
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Re: Re: I certainly support a warrant being required
Just from the Wikipedia entry for US vs Hubble 'act of production doctrine':
Under the Act of Production Doctrine, the act of an individual in producing documents or materials (e.g., in response to a subpoena) may have a "testimonial aspect" for purposes of the individual's right to assert the Fifth Amendment privilege against self-incrimination to the extent that the individual's act of production provides information not already in the hands of law enforcement personnel about the (1) existence; (2) custody; or (3) authenticity, of the documents or materials produced.
https://en.wikipedia.org/wiki/United_States_v._Hubbell#Summary_of_the_Act_of_Production_Do ctrine
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Re:
The military in general places a lot more emphasis on proper procedure, especially if there's a possibility that not doing so will have severe repercussions that will bite you in the ass down the line. Soldiers aren't completely expendable either, so there's a reason not to immediately treat all defendants as guilty.
Civilians, on the other hand, aren't much more than walking wallets with assets that can be seized when it's convenient or opportune.
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Where is the document?
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