Another Court Says Compelled Password Production Doesn't Violate The Fifth Amendment

from the another-option-that-isn't-an-encryption-backdoor dept

Mon, Dec 18th 2017 1:29pm — Tim Cushing

Another court has decided compelled password production isn't a violation of the Fifth Amendment. The Massachusetts case [PDF], titled "In the Matter of a Grand Jury Investigation," concerns allegations of child abuse. The grand jury requested access to the contents of the suspect's phone. The government obtained a warrant but sought a court order compelling the suspect to produce a password to unlock it. The court granted it and the suspect challenged the order after being hit with contempt charges for failing to turn over the password. (via FourthAmendment.com)

The court finds no problem with the government's reasoning. According to the court, the ownership of the phone is the only "foregone conclusion" the government needs to reach.

Here, the Commonwealth demonstrated sufficient knowledge to show that the factual statements that the petitioner's act of entering his PIN code would convey are foregone conclusions. As summarized in the grand jury materials submitted to the judge under seal, the Commonwealth already knew that the iPhone contained files that were relevant to its investigation based, in part, on information provided by the petitioner. In addition, the Commonwealth knew that a PIN code was necessary to access the iPhone, that the petitioner possessed and controlled the iPhone, and that the petitioner knows the PIN code and is able to enter it. Accordingly, the Commonwealth established independently and with specificity the authenticity, existence, and possession of the compelled information.

Because of this low bar, the government can seek compelled access, even if the production of the password might result in evidence the government can use against the suspect.

Thus, the order does not require the petitioner to communicate information that would fall within constitutional self-incrimination protection. The affidavit in support of the search warrant application established that the Commonwealth had probable cause to believe that the iPhone contained evidence of the crimes that are the subject of the grand jury investigation. The order simply allows execution of that warrant.

This result is unsurprising, considering the only thing the government must prove is the locked device is owned or controlled by the person refusing to provide a password. There's a little variance between courts on the subject of "foregone conclusion," but the bar remains low enough most prosecutors and law enforcement agencies should be able to hit it. Of course, there's always a chance a person would rather spend an indefinite amount of time in jail on contempt charges rather than grant access to evidence to be used against them in a criminal trial.

This gives the government a considerable amount of leverage in cases like these. Considering courts are routinely sympathetic to "foregone conclusion" arguments, it's odd the courts haven't been hit with a massive influx of cases like these since the 2015 switch to default device encryption.

We hear from the FBI and prosecutors like Cy Vance that thousands of locked phones are sitting around law enforcement offices with no options for accessing their contents. It would seem compelled production is a pretty safe bet. Even if it doesn't result in device access, it would at least result in contempt charges, which would probably motivate more people into allowing access. But we just haven't seen that happen, which suggests the entities make the loudest noises about encryption aren't making a good faith effort to use every option available to them.

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Filed Under: 5th amendment, compelled password production, passwords

69 Comments

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Ninja (profile), 18 Dec 2017 @ 12:11pm

"But we just haven't seen that happen, which suggests the entities make the loudest noises about encryption aren't making a good faith effort to use every option available to them."

And some options like the one discussed in this article are already twisted and awful already so nothing that wouldn't please these sociopaths, no?
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aerinai (profile), 18 Dec 2017 @ 1:25pm

Your guilt is a foregone conclusion...
I see that you printed out a random series of words on a paper we believe to be a coded message. Tell us what it says or you will be held in contempt... It is a foregone conclusion that you know what this code means.

How on earth is this example any different than providing a PIN?!
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Anonymous Coward, 18 Dec 2017 @ 1:47pm

There's a little variance between courts on the subject of "foregone conclusion," but the bar remains low enough most prosecutors and law enforcement agencies should be able to hit it.

Except when they are fishing, and do not know what crimes they may find evidence of on the phone.
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Anonymous Coward, 18 Dec 2017 @ 1:47pm

"But we just haven't seen that happen, which suggests the entities make the loudest noises about encryption aren't making a good faith effort to use every option available to them."

And the entities making the loudest noises that are anti-encryption seem to be supporting murderers, terrorists, and child molesters. How quaint.
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That Anonymous Coward (profile), 18 Dec 2017 @ 1:55pm

"the Commonwealth already knew that the iPhone contained files that were relevant to its investigation based"

Then why did they need access? If what they knew was enough to compel production, did it not meet the bar to be evidence in court? Defendant could have challenged the assertions in court, but then would have to provide access to the device & its contents to disprove the claims.

Vance & the FBI want a super sekrit backdoor because they really don't want the attention that bringing court cases would create. If they manage to hit a sympathetic defendant people might question the narrative that it isn't violating rights to force them to hand over their secrets. Super sekrit backdoors would make it easy for backdoor searches of people using secret warrants from our sekrit courts. Then there is the added bonus of seeing how often offical databases & records are accessed improperly & trying to pretend they would NEVER do that with the magic phone code.

I think its kind of telling that a legal system that doesn't seem to blink at parallel construction, accepts that somehow despite the huge amount of collected data that somehow people are managing to keep secrets.
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That Anonymous Coward (profile), 18 Dec 2017 @ 1:56pm

Re:
But cops have legal rights too!
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That Anonymous Coward (profile), 18 Dec 2017 @ 1:56pm

Re:
Hey now not all sociopaths are bad people...
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Anon, 18 Dec 2017 @ 1:59pm

Slightly Misunderstood
If I'm reading this correctly, the issue is more complex. Like the case, several years ago, about powering up a laptop at the border - the state (claims) that it knows specific material is there, so they can therefore compel the owner to produce it. For the border case, the customs people saw the images before they locked up. In this case, they say the defendant told them what was there.

If the court, for example, *knows* you have a spreadsheet of your illegal transactions, or interesting photos, or stolen goods, they can compel you to produce them. If the only way to do so is while the police watch over your shoulder, well, sucks to be you. You can't escape the court's "request" by simply burying the material deep in the woods once they know you have it. Nor can you simply hide it behind a password.

This is 180º different from a fishing expedition, assuming the state is telling the truth. If you have something in your possession, and the state knows it, they can compel you to produce it. What they can't do is go on fishing expeditions, like the San Bernadino terrorists - "We have no idea what is there, but we want to look in this phone". In that case, they are compelling you to produce unknown evidence by your testimony.
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Anonymous Coward, 18 Dec 2017 @ 1:59pm

So, do I still have the right to remain silent?
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Reasonable Coward, 18 Dec 2017 @ 2:07pm

Beef up your 5th amendment rights!
I make my passcodes an admission of guilt about a crime, such as, "I stole my neighbor's barbecue." That way, revealing my passcode would certainly violate my 5th amendment rights!
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AnonCow, 18 Dec 2017 @ 2:14pm

"We already know there is evidence on the phone, but we don't have any actual evidence of that, so we need to unlock the phone to get the evidence."

It's like the court is trying to create a new example for a Wikipedia page on "circular logic".
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Anonymous Coward, 18 Dec 2017 @ 2:14pm

Re:
You only have the rights you are prepared to physically enforce.

Good luck with that!
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Anonymous Coward, 18 Dec 2017 @ 2:19pm

If the court, for example, knows you have a spreadsheet of your illegal transactions, or interesting photos, or stolen goods, they can compel you to produce them. If the only way to do so is while the police watch over your shoulder, well, sucks to be you. You can't escape the court's "request" by simply burying the material deep in the woods once they know you have it. Nor can you simply hide it behind a password.

While it's hard to tell from the case, assuming the phone was encrypted, then your example isn't a proper analogy. It's not "simply hidden behind a password", it's encoded using the password as an initial state. In your example, your "interesting photos" don't exist- Instead, an incomprehensible set of data is all Law Enforcement has in its possession; And the only "foregone conclusion" they have is that it is a photo, and that you know the information necessary to translate it into an actual photo. While it's arguable whether or not compelling its translation is testimonial in nature (certainly compelling a translation of a coded message would be, but perhaps a coded transaction log would be legally distinct), Massachusetts' Constitution's Article 12 also prohibts the compelled "furnishing of evidence", and while courts have thus far only determined it applies to testimonial and communicative evidence, on its face it would seem to apply to exactly this kind of situation as well.
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Anonymous Coward, 18 Dec 2017 @ 2:27pm

ANY search warrant "might result in evidence the government can use against the suspect".
What the hell is your point? Think cell phones have magic fairy dust and are unlike, say, a locked desk drawer?
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Rekrul, 18 Dec 2017 @ 2:30pm

Re: Slightly Misunderstood

If I'm reading this correctly, the issue is more complex. Like the case, several years ago, about powering up a laptop at the border - the state (claims) that it knows specific material is there, so they can therefore compel the owner to produce it.

No, the state thinks and assumes that the specific material is there. What's the difference between this and "We know you killed your wife, so show us where the body is."?
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Anonymous Coward, 18 Dec 2017 @ 2:32pm

Re: Beef up your 5th amendment rights!
That's an interesting legal theory, but although a forced confession can't in itself be presented in court as evidence of a crime, it certainly can be used by authorities as a new lead in an investigation, in order to find other evidence to convict the person who was not previously even a suspect.
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Anonymous Coward, 18 Dec 2017 @ 2:34pm

Re: Slightly Misunderstood
So then don't they have enough evidence to take the case to court if they already have proof of the existence of the data/crime they are looking for?

If all they have is the word of the people saying they saw the files and you can compel someone to show or produce evidence, then you have a potential slippery slope.
One that a team of people could use to falsely accuse someone to force a decryption for fishing or harassment?

I'll have to read more of the case files because it sounds like it's more than just a claim of knowing evidence and a refusal to produce putting the person in contempt.
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Anonymous Coward, 18 Dec 2017 @ 2:35pm

Re: Slightly Misunderstood
I don't buy it.

It is like forcing murderer to produce the murder weapon.
So he could be convinced with 100% probability.
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Anonymous Coward, 18 Dec 2017 @ 2:35pm

Re: only "applies to testimonial and communicative evidence"
That's because only persons can be compelled or coerced. A gadget is immune to threats. -- Trust me: I've tried threatening gadgets, and I know what they fear, yet it doesn't work. Er... Anyhoo, just because has an LCD screen doesn't make it any different than a locked desk drawer. A search warrant for a house allows police to break open locked drawers. This differs only because the lock is more complex.

You're trying to make up another case instead of understand this one.
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Anonymous Coward, 18 Dec 2017 @ 2:41pm

Re: ANY search warrant "might result in evidence the government can use against the suspect".
Just because you locked your desk with an inferior lock doesn't make it legal for the government to ignore the rights of the owner.

Your phone is a desk/house full of information and the builders, being smart, put on a special lock that makes the house change from its normal state to an unrecognizable heap of garbage until you show up with the right keys to unlock that cool lock.
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Paul Brinker, 18 Dec 2017 @ 2:42pm

Re: Beef up your 5th amendment rights!
You would be better off with an auto deleting password locker service.

The service would need to be remote and basicly you provide the password and it returns your service specific password. If you don't unlock after X number of days the locker deletes your device specific passwords.

When they ask, it's already deleted as per your personal encryption policy.
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Anonymous Coward, 18 Dec 2017 @ 2:46pm

Re: Re: Beef up your 5th amendment rights!
Unless your password is literally "Ipleadthefifth".
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Paul Brinker, 18 Dec 2017 @ 2:46pm

Re: Re: ANY search warrant "might result in evidence the government can use against the suspect".
While this would be fun to see in the real world, The Clockwork house that does what your talking about can so far only be found in the "Dishonored" video game.
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Anonymous Coward, 18 Dec 2017 @ 3:00pm

These rulings are so bleeding insane if for only the simple reason that this indefinitely jails anyone who dare forget a password at an inopportune time. They might be able to prove you accessed it just a couple of days ago. But I'll be damned if I've never forgotten a password I crafted just the day before.
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MyNameHere (profile), 18 Dec 2017 @ 3:03pm

Re: ANY search warrant "might result in evidence the government can use against the suspect".
The two answers you will generally get is "it contains more than a desk drawer" and "encryption means you don't even know there is a drawer" (or something like that).

However, the problem with both of those arguments is that they do not look at what the pincode generally is: equivalent to a door lock, and not much else. The courts have always held that a warrant can compel someone to produce the key or the police have the option of breaking down the door or cutting open the safe to get to the contents.
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Ben (profile), 18 Dec 2017 @ 3:08pm

And he gives them a PIN...
...and it is the wrong PIN. Oops -- that is to my other phone. Try this one... and it is again, the wrong PIN. At which point will they believe any PIN he gives them (if three failures wipe the phone)?

I really don't understand the court's logic. It is compelled speech which will incriminate him. That is the definition of a 5th amendment violation.
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Anonymous Coward, 18 Dec 2017 @ 3:20pm

At this point I would scuffle with someone in an effort to cause some kind of head injury and then claim amnesia.
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Personanongrata, 18 Dec 2017 @ 3:40pm

Liberty and Justice for All, My Ass!
Another Court Says Compelled Password Production Doesn't Violate The Fifth Amendment

Well, golly gee wilikers, federal/state court jesters (ie judges) are very adept in practicing newspeak and double think.

Compelling a person to reveal a password that may lead to the disclosure of information that may or may not be incriminating is exactly the reason the 5th Amendment to the Bill of Rights was authored in the first place.

What do the following plain English words mean?

nor shall be compelled in any criminal case to be a witness against himself

http://nccs.net/online-resources/us-constitution/amendments-to-the-us-constitution/the-bill-of-righ ts-amendments-1-10/amendment-5-protection-of-rights-to-life-liberty-and-property

This gives the government a considerable amount of leverage in cases like these.

Do you think so?

What these authoritarian judicial decrees allow is for the Bill of Rights to be rendered a dead letter via judicial malpractice.

The Rights enshrined in the US Constitutions Bill of Rights were intended to act as a shield for the vulnerable, those of us least capable of defending themselves, against the depredations of the powerful (eg US government, corporations) not a document that further empowers tyrants under the guise of dispensing justice.
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Anonymous Coward, 18 Dec 2017 @ 4:05pm

Re: Your guilt is a foregone conclusion...
It's different, because we said it's different.

You'll also go to jail indefinitely, if you refuse to implicate yourself as we have told you to do.

Be glad we still have to provide some level of false assurances to the public, we can't wait to go full fascist.

This will never change, because there's not a single one of you willing to do anything about us.

You want to enjoy your freedoms? Stay off of our radar, and don't become a believable scapegoat.
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Anonymous Coward, 18 Dec 2017 @ 4:11pm

Re: Beef up your 5th amendment rights!
passcode == "I will not do that"

DA: Please provide us with your passcode
You: I will not do that

DA: We will hold you in contempt
You: For what?

DA: Book 'em Danno
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Anonymous Coward, 18 Dec 2017 @ 4:11pm

Re: Re: Beef up your 5th amendment rights!
Then you spend the rest of your life in jail. Unless you confess of course. Then you'll just serve out what ever time is required of the crimes we've set up for you.

Best hurry though, we stack on more felony offenses the longer you make us wait. Not that you'll be employable or have a life after pissing us off anyway, but you'll definitely stay in prison longer.
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Anonymous Coward, 18 Dec 2017 @ 4:19pm

Re: Liberty and Justice for All, My Ass!

The Rights enshrined in the US Constitutions Bill of Rights were intended to act as a shield for the vulnerable, those of us least capable of defending themselves, against the depredations of the powerful (eg US government, corporations) not a document that further empowers tyrants under the guise of dispensing justice.

You just said why those rights are no longer relevant. The US government doesn't care to enforce them anymore. So the rights are meaningless.

If they want you to take the fall for something, they will make sure that you do. Rights or no rights. The people lost control years ago, it's only now that the government is starting to exploit that fact.

This is just more evidence that A) The people in the US are apathetic to their own plight. B) Your rights no longer exist unless you have money, or are well connected. C) Words are meaningless, and so are the ones signed by previous administrations. Actions are everything. You want your rights? You have to enforce them yourselves. Whether that involves the soap box, the ballot box, or the ammo box, is up to you, but you have to enforce them. Otherwise you will loose them.
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MarcAnthony (profile), 18 Dec 2017 @ 4:23pm

Farcical logic
The Commonwealth's reasoning that "little or nothing to the sum total of the government's information" would be added by the admission of this evidence is at odds with the fact that the case itself hinges on the outcome.
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That One Guy (profile), 18 Dec 2017 @ 4:33pm

"We already have the evidence, so give us the evidence."
Funny how that works.

Claim that it's a 'forgone conclusion' that they know what's on the device, so compelling someone to decrypt it isn't providing anything new or incriminating and as such doesn't trigger fifth amendment protections, yet if they already had the evidence then they could do just fine without compelling someone to provide incriminating evidence against themself.

As always I'd love for someone to try and call their bluff by asking for immunity in return for the password, as if they're not being asked to provide self-incriminatory evidence then the investigators/prosecutors would lose nothing in the deal. That they would never take such a deal would expose that they know damn well what they are really demanding.
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Anonymous Coward, 18 Dec 2017 @ 5:02pm

Re: Re: ANY search warrant "might result in evidence the government can use against the suspect".
Interesting. What happens when they can't "compel" someone to open a locked door because they don't have or "know" the key? How do you compel an idea?
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Anonymous Coward, 18 Dec 2017 @ 5:09pm

Re: "We already have the evidence, so give us the evidence."
"As always I'd love for someone to try and call their bluff by asking for immunity in return for the password ... they would never take such a deal"

They would jump on the opportunity if other suspects were involved. That's how grand juries frequently operate, forcing person A to testify under (usually partial) immunity in order to give prosecutors ammunition against person B, and then repeating the process with person B (and C, D, E ...), and in the end, convicting the lot, based largely on compelled testimony.
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Anonymous Coward, 18 Dec 2017 @ 5:53pm

Re: Re: ANY search warrant "might result in evidence the government can use against the suspect".
out_of_the_blue and MyNameHere flirting. If they weren't both authoritarisexual psychopaths it'd almost be cute to watch.
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MyNameHere (profile), 19 Dec 2017 @ 3:13am

Re: Re: Re: ANY search warrant "might result in evidence the government can use against the suspect".
It's like anything - if you cannot produce something, then you get to sit in jail in contempt of court.

Remember, this isn't like an 256 bit password - this is the guys unlock code on his phone that he unlocked hundreds or thousands of times before. Suddenly forgetting it would be, umm, a little too convenient.

You may have a more compelling argument for having forgotten a 256 or 1024 character random code, but your lock code, well... you know it. Saying you don't is just obstructing justice.
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Anonymous Coward, 19 Dec 2017 @ 4:11am

Re: Re: only "applies to testimonial and communicative evidence"
A warrent for a house is not the same as what is being discussed here

Its apples and oranges
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Anonymous Coward, 19 Dec 2017 @ 6:04am

Re: Re: Slightly Misunderstood
"No, the state thinks and assumes that the specific material is there."

Your statement is false.

"the Commonwealth already knew that the iPhone contained files that were relevant to its investigation based, in part, on information provided by the petitioner"

They already knew that there was evidence on the phone, so they compelled the defendant to provide the password. This is no different than a locked door, or locked safe. They can't open it just to open it, but if they have enough evidence to convince a Judge that there is relevant evidence on the phone, I don't see a problem with them forcing someone to provide a password.
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Anonymous Coward, 19 Dec 2017 @ 6:42am

Re: Re: only "applies to testimonial and communicative evidence"
"That's because only persons can be compelled or coerced. "

Corporations are people my friend
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Private Prison lobbist, 19 Dec 2017 @ 6:44am

Re: Re: Re: Re: ANY search warrant "might result in evidence the government can use against the suspect".
"if you cannot produce something, then you get to sit in jail"

Let the parties begin!
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The Wanderer (profile), 19 Dec 2017 @ 8:02am

Re:
I think the idea is that they knew A: that the files which contained the information they needed were on there, but did not know B: the information itself.

A little bit like how if a particular bank sends out its customers' bank statements in a particular distinctive style of envelope, with the bank's name on it and the words "statement enclosed", you can know A: that a sealed envelope of that design which has the name of a particular person as the addressee contains one of that person's bank statements, but not know B: the bank balances recorded on that bank statement.

(Leaving aside the-bank-is-involved-in-it conspiracy situations where something other than a bank statement could be sent out in such an envelope, since they're so vanishingly rare as to be ignored as outliers for the purpose of this analogy.)
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Rekrul, 19 Dec 2017 @ 8:09am

Re: Re: Re: Slightly Misunderstood

They already knew that there was evidence on the phone, so they compelled the defendant to provide the password. This is no different than a locked door, or locked safe. They can't open it just to open it, but if they have enough evidence to convince a Judge that there is relevant evidence on the phone, I don't see a problem with them forcing someone to provide a password.

After having read through the provided PDF, nowhere does it say that they knew exactly what was on the phone. They claimed that it's a "foregone conclusion" (a phase I'm sure will become as common as "I feared for my safety."), but the court did not require them to prove that they knew what was on the phone, only that he owned it and knew the PIN for it and that they claimed they knew there was evidence on it.

It also says that a case qualifies for the "foregone conclusion" exemption when the produced information would add little or nothing to the prosecution's case. I have to wonder though, if the information on the phone would add little or nothing to the case, why are they so desperate to access it?

I'm calling it here and now; Law enforcement saying that they know that there's evidence on a locked phone or computer will become the newest go-to excuse to get around a suspect's rights. Which will make device encryption moot because either the suspect will have to enter their PIN and give the cops the evidence that they need to lock that person up, or they'll refuse and get locked up anyway for defying the court.
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Anonymous Coward, 19 Dec 2017 @ 8:11am

Re: Your guilt is a foregone conclusion...
Of course, if it were actually a "foregone conclusion", a jury could convict without help from the suspect/defendent.
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The Wanderer (profile), 19 Dec 2017 @ 8:19am

Re: "We already have the evidence, so give us the evidence."
The logic is that "we have evidence (A) to prove that further evidence (B) exists on the device, and we have evidence (C) to prove that this person has the password to unlock the device, but we don't yet have the evidence (B) that exists on the device".

It's entirely possible for B be sufficient to convict, but A and C together be insufficient.

In the argument that "the act of unlocking the device would constitute revealing information which would tend to incriminate me", the information which is deemed to be revealed by that act (under established precedent as far as I understand it) is not the information which is behind the lock; it is the information that "this person is able to unlock this device", or in other words "there is a non-imaginary connection between this person and this device", which - under C - is already known.

Since law enforcement already knows C, the act of unlocking the device does not tell them anything they already knew, any more than the act of unlocking a combination-lock safe would do - even though it does give them access to everything which is behind the lock.

(I'm not entirely happy with the consequences of that logic and its conclusion, but I don't see any actual holes in it.)
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Anonymous Coward, 19 Dec 2017 @ 10:27am

Re: Re: "We already have the evidence, so give us the evidence."
Lets say I agree with your logic, which I mostly do.

Can you prove the person actually remembers the pin to unlock the phone?

If not, is it reasonable to punish them for not providing it?
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ANON, 19 Dec 2017 @ 11:09am

Re:
Yes and no. In the classic case of the laptop at the border - the owner was asked to turn it on, he did, and the border agents saw child porn on the computer. Later it was turned off or something, and so was subsequently locked. The argument was the authorities had *seen* the photos, so they knew they existed. The argument was "we *know* (not guess) the items are there so you must produce them.

I see the logic of this position, even though I disagree with the idea that someone should be forced to share the content of their mind.

Plus, we see the concurrent abuse of the concept that seems to be happening here from the comments - that the police do not *know* there is incriminating evidence, they are just "pretty sure* and that is a huge difference in concept.
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Bergman (profile), 19 Dec 2017 @ 12:18pm

Re:
According to the courts, you only have the right to remain silent if you speak out and assert it. If you actually just remain silent, then that silence is somehow proof of wrongdoing.

Also, if you speak you waive your right to remain silent with regards to anything you speak, so I'm not sure how you could assert your right to remain silent without waiving it.
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Bergman (profile), 19 Dec 2017 @ 12:20pm

Re: Re: Re: Beef up your 5th amendment rights!
That's hilarious. There is no requirement that you tell the cops how to operate a lock or which way to turn a key, only that you provide one.

It won't save you from a contempt jailing, since saying you plead the fifth after being told you have no right to results in indefinite jail time.

But it's still hilarious.
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Bergman (profile), 19 Dec 2017 @ 12:23pm

Re: Re: Beef up your 5th amendment rights!
So make your password be a confession of the crime they are seeking your files about. Or all of your crimes if you've committed more than one really serious one.

The password being a confession means you cannot be compelled to give it, and informing the court of that presents them quite the conundrum.

The only way they could constitutionally compel that testimony is by granting you immunity to the crime you confess, and if that crime happens to be the one they want access to your files for in order to prosecute you...
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Bergman (profile), 19 Dec 2017 @ 12:26pm

Re: Re: Re: Beef up your 5th amendment rights!
It wouldn't be a life sentence, but you should expect to be charged under the Sarbanes-Oxley Act, on top of anything else they might charge you with.

Violating Sarbanes-Oxley carries a 20 year prison sentence, so it might or might not be worse than being convicted of what their fishing expedition is angling for.
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Bergman (profile), 19 Dec 2017 @ 12:31pm

Re: Re:
Yeah, but each photo is a separate possession charge. If the cops saw one photo, then producing that photo is not testimonial. That's about a 5 year prison sentence there.

But if there are 100 photos and the cops only saw one, then producing those other 99 photos would be compelled testimony, and the resulting 495 year prison sentence would be unconstitutional, though I doubt that would stop the legal system from putting the accused in prison anyway.

There's also transmission logs for file uploads, and distributing child pornography has about twice the prison sentence, again per file, as possession does. If the cops can't prove distribution without access to the computer, that again would make giving them access testimonial.
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Bergman (profile), 19 Dec 2017 @ 12:33pm

Re: Re: Re: Re: ANY search warrant "might result in evidence the government can use against the suspect".
There is an app that sets your unlock code to the time display on the lock screen. As long as you cannot see the screen, you can truthfully state that you don't know the pin code -- even the most accurate wall clock is often a few seconds slow or fast after all, and they'd probably confiscate a prisoner's smartwatch.
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Bergman (profile), 19 Dec 2017 @ 12:37pm

Re:
There are apps that change your unlock method to a number of different things. For example, the current time display on the lock screen, or a series of pictures from your device's picture viewer.

With one of those, just being asked what your unlock pin is, without being able to see the device, will mean you honestly DON'T know the code.

It's worth noting that if you can get your hands on your device and quickly enter enough wrong codes to make it secure wipe itself, the maximum sentence for doing so is 20 years in prison (Sarbanes-Oxley Act) and just 5 child porn image files would carry a longer sentence than 20 years.
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Bergman (profile), 19 Dec 2017 @ 12:42pm

Re: And he gives them a PIN...
It's not a violation because they claim they already know he has at least one illegal file on the device, and they really really want it, please with sugar on top.

The problem is, if he is guilty, then he probably doesn't have just the one file, and each file is a separate count of a crime that carries a 5 year prison sentence per count.

The cops saw one file, out of potentially thousands. While unlocking the device to give them that one file isn't testimonial, the others would be. Except the court says they're not, and judges are in the habit of believing anything they officially rule becomes the literal truth of reality.

If they outlawed cute animal pictures tomorrow, with the same penalties for child porn, I'd spend the next 5-10 thousand years or so in prison.
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Bergman (profile), 19 Dec 2017 @ 12:45pm

Re: Re: Re: "We already have the evidence, so give us the evidence."
There are apps to make it impossible to remember your pin without having eyes and/or hands on the device. But giving someone such access would potentially allow them to secure wipe it.

It might even be worth the 20 year resulting prison sentence if the incriminating evidence on the device would result in a longer sentence.
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Anonymous Coward, 19 Dec 2017 @ 1:39pm

Re: Re: Re: Re: Re: ANY search warrant "might result in evidence the government can use against the suspect".
So basically the cops can just look at your on screen time and get in. Brilliant now you can have a crappy password and go to jail.
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R.H. (profile), 19 Dec 2017 @ 3:21pm

Re: Re: Re: Slightly Misunderstood
In the case of the safe, they wouldn't be able to compel me to come up with a key or combination but, they could compel me to provide access to a locksmith and deputies to crack the safe. The situation is the same here, if they want in, they can break in. Otherwise, why should I be required to assist the prosecution in acquiring evidence against myself if I've already given them all the physical things they requested via warrant?
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Anonymous Coward, 19 Dec 2017 @ 3:50pm

No subject shall be compelled to furnish evidence against himself [was Re: ]

Massachusetts' Constitution's Article 12 also prohibts the compelled "furnishing of evidence", and while courts have thus far only…

Massachusetts courts have thus far only proven themselves unwilling to uphold the Constitution of the Commonwealth.

Massachusetts Constitution

PART THE FIRST

A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts

. . .

Article XII.

No subject shall . . . be compelled to accuse, or furnish evidence against himself.

The words are fairly plain.
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Anonymous Coward, 20 Dec 2017 @ 4:58am

Re: Re: Re: Re: Slightly Misunderstood
Argue all you want. The source said they KNEW the Iphone contained evidence, based in part by the defendants OWN statements. The below is directly from the cited sources.

"he admitted to the police that he worked for the financial services company and had communications with the company contained on his home computers, which he had encrypted and only he could decrypt. "

"The foregone conclusion exception has applied when the government independently and with specificity established the authenticity, existence, and possession of the compelled information. Gelfgatt, supra at 522. In Gelfgatt, the Commonwealth possessed “detailed evidence” of fraudulent mortgages linked to a financial services company. 468 Mass. at 523. When the defendant was arrested, he admitted to the police that he worked for the financial services company and had communications with the company contained on his home computers, which he had encrypted and only he could decrypt. Id. at 517."

I don't want the Gov in my stuff any more than anyone else does. However when the Defendant states that he used the devices in question in the (suspected)commission of a crime, AND they were able to "independently and with specificity established the authenticity, existence, and possession of the compelled information" there is no argument. The court did the right thing.

If the phone was all they had, then I would argue it's a fishing expedition. However, the Defendant himself verified he used the devices to communicate with the company he was suspected of defrauding, and they were able to "independently and with specificity established the authenticity, existence, and possession" of the phone and data, then the court (IMO/IANAL) has every right to compel the password.
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Anonymous Coward, 20 Dec 2017 @ 5:17am

Re: Re: Re: Re: Slightly Misunderstood
The difference is simple. If they had no knowledge of what was in the safe, fine, I would agree. But in this case the defendant admitted.......

" he admitted to the police that he worked for the financial services company and had communications with the company contained on his home computers, which he had encrypted and only he could decrypt."

......to the police he had used the phone to communicate with the company in questions, and they were able to.....

" independently and with specificity established the authenticity, existence, and possession of the compelled information. Gelfgatt, supra at 522"

....then yes, they should be able to compel him to open the devices. Just as if someone admitted that, and they were able to independently verify that, a safe contained evidence. They should then be able to force someone to open a safe.

Once the defendant admitted there was evidence on his computers, and were able to independently verify that the statement was true, then clearly it is then a forgone conclusion by definition?

I don't particularly like the law, but IMO/IANAL it was correctly applied in this case.
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Rekrul, 20 Dec 2017 @ 10:28am

Re: Re: Re: Re: Re: Slightly Misunderstood

Argue all you want. The source said they KNEW the Iphone contained evidence, based in part by the defendants OWN statements. The below is directly from the cited sources.

The part you quoted is a separate case being referenced by the current case as a precedent. All references to computers are part of a previous case being cited.

If the phone was all they had, then I would argue it's a fishing expedition. However, the Defendant himself verified he used the devices to communicate with the company he was suspected of defrauding, and they were able to "independently and with specificity established the authenticity, existence, and possession" of the phone and data, then the court (IMO/IANAL) has every right to compel the password.

This case is about child abuse and the available sources are rather vague on the details, since this decision is strictly about the contempt charge and the defendant's appeal to not be forced to enter his PIN. From the PDF;

To meet its burden under this doctrine, the Commonwealth was required to demonstrate knowledge of the petitioner's ownership and control of the iPhone and its contents, as well as "knowledge of the fact of [PIN code protection], and knowledge of the [existence of the PIN code]." Id. at 524. The Commonwealth was not required to show that it knew the specific content of the iPhone, but it did need to demonstrate knowledge of the existence and the location of the content.

(emphasis mine)

As it doesn't go into details about what the defendant said or what the prosecution claimed they knew was on the phone, we can only speculate. It does say;

As summarized in the grand jury materials submitted to the judge under seal, the Commonwealth already knew that the iPhone contained files that were relevant to its investigation based, in part, on information provided by the petitioner.

However, without more details we can't know what he said. Knowing how law enforcement and prosecutors are willing to twist facts to their advantage whenever possible (yes, defense attorneys do this too, but you expect those tasked with upholding the law to have higher standards than the people they accuse of crimes), it could have been something as innocent as "Sure, I've used my phone to take pictures of my kids. Who hasn't?" Which then becomes "The defendant admitted than there are photos of children on his phone, these photos would show a definite pattern of abuse, therefore we need to access the contents of the phone."

If the contents of the phone are a "foregone conclusion", why do they need them so badly?
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Anonymous Coward, 20 Dec 2017 @ 11:23am

Re: Re: Re: Re: Re: Re: Slightly Misunderstood
My point was that the story headline is a bit misleading. There is quite a bit more to this than the court simply stating that "Another Court Says Compelled Password Production Doesn't Violate The Fifth Amendment"

I realize some of the info is sealed, and we may never know what the defendant said, or what exactly the state had to demonstrate the existence of, in order to meet the "foregone conclusion" standard. Simply that they did. Twisting facts and other assumptions aside, they were able to show that they knew the data was there (whatever it was), that the defendant's own statements supported that the data was there, and that they would have come to this conclusion with or without the evidence on the phone itself. Why was it key to their investigation? Who knows.

"Accordingly, the Commonwealth established independently and
with specificity the authenticity, existence,and possession of the compelled information."

So they had to prove the authenticity, existence, and possession of the compelled information.

I'm speculating at this point: It is possible that the guy took some Pics, and sent them to someone. That someone turned him in, as well as the pictures. They then would be able to see where the pics came from. If they then were able to prove the Defendant had possession of the phone during the time in which the pics were sent, IMO it would meet the forgone conclusion standard. Again this is my personal opinion.
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ralph_the_bus_driver (profile), 21 Dec 2017 @ 4:53am

Re: Re: Re: Re: Re: Re: Re: Slightly Misunderstood
- " that the defendant's own statements supported that the data was there,"

No. The prosecution stated that data was there, not THE data. They don't know WHAT data is on the phone and is on a fishing expedition to discover what data.

If they knew what data was there then they could identify it with specificity, which is a general requirement for a search warrant.

(caps used for emphasis only)
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ralph_the_bus_driver (profile), 21 Dec 2017 @ 5:01am

Re: Re: Re: Re: Re: Slightly Misunderstood
FIFTH AMENDMENT

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.

Read again, "..., nor be compelled in any criminal case to be a witness against himself, ..." By forcing him to open the phone, or a safe, or decipher a code; they are compelling him to be a witness against himself.
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Anonymous Coward, 21 Dec 2017 @ 6:01am

Re: Re: Re: Re: Re: Re: Re: Re: Slightly Misunderstood
You need to spend more time reading the case. They were able to independently verify that evidence was on the phone, based in part by the defendants own words. You don't get to incriminate yourself then hide behind the 5th afterwards. Also you don't get to take pics of child abuse, send them to someone, then hide behind the 5th. I'm not sure if that's the case here as it's under seal I believe, but it could very well be whats happening.
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Rekrul, 21 Dec 2017 @ 9:56am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Slightly Misunderstood
Hypothetical scenario;

A person buys a portable hard drive at a thrift store that happens to be encrypted. The person puts the drive aside intending to format it later and forgets about it. A while later, their neighbor uses that person's WiFi to download some files over a file sharing network, that turn out to be child porn. The FBI shows up with a search warrant and finds the encrypted drive. "Your honor, we know that the defendant downloaded child pornography and they were found in possession of an encrypted hard drive. That they hid the downloaded files on this drive is a foregone conclusion. The defendant claims not to know the password to the drive, but cannot provide any proof to support this. We request that you issue an order compelling the defendant to produce the password or be held in contempt of court."

How do they prove that they don't know the password to the drive? Even if they could somehow prove that they bought it at a thrift store, there's no proof that they didn't reformat and encrypt the drive. Other witnesses? They could be lying to protect the defendant. Accuse the neighbor? They're not likely to admit to downloading child porn and the police would need more than the word of someone with an encrypted drive to get a search warrant. Even if they did, maybe the neighbor has bought a new computer or wiped the old one. If they plugged the drive into the computer at all, Windows probably has a record of it somewhere, which would be used as proof that they used the drive.

So if defendants can be compelled to reveal passwords/PINs, what recourse would the above person have? They can't reveal something they don't know and they can't prove that they don't know it.
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Anonymous Coward, 24 Dec 2017 @ 5:09pm

Re: Re: Re: Re: ANY search warrant "might result in evidence the government can use against the suspect".
"Your honor, we're pretty sure that the defendant killed someone at sometime. That is a foregone conclusion in our opinion. However, he won't tell us where he hid the body. Therefore we request that you order him to either: (a) tell us where to find the body; or (b) rot in prison until he does."
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