Massachusetts Supreme Court Looking To Define Where The Fifth Amendment Ends And Compelled Decryption Begins
from the let-a-new-wave-of-'wall-safe'-analogies-wash-over-this-land dept
Another case attempting to define the contours of the Fifth Amendment as it pertains to cellphones and passwords has arrived in the Massachusetts Supreme Judicial Court. The case involves sex trafficking allegations and a phone seized from the defendant at the time of his arrest. Testimony from a person who said she was trafficked suggested the phone seized belonged to the defendant Dennis Lee Jones. The state sought to compel Jones to unlock the seized phone, but this motion was denied by the trial court, resulting in the state's appeal.
While the lower court did express some concern that unlocking devices can result in the production of evidence to be used against the person unlocking it, the standard for compelled password production has nothing to do with the eventual recovery of evidence. All the state* needs to reach is a reasonable certainty the defendant knows the password to the seized device. This is called a "foregone conclusion" -- the defendant "telling" the state what it already "knows:" that the phone belongs to him and he can unlock it. The potential evidence held inside the phone may eventually be used against the defendant, but the Fifth Amendment question isn't about this evidence, but rather the simple act of producing a password, which isn't considered testimonial if the government can tie the phone to the accused.
*Yes, I realize Massachusetts is technically a commonwealth. There's no need to point this out in the comments.
In this case, it appears the state failed to meet that standard. The opinion being appealed says the government hasn't been able to conclusively show the phone belongs to Jones or that he knows the password. It may have shown evidence relevant to the case resides on the device, but that's not enough to move forward with compelled decryption.
In this case, the Commonwealth has established with reasonable particularity that information relevant to the charges against Mr. Jones exists on the LG Phone, and that it is authentic, satisfying two of the three elements of the “foregone conclusion” analysis. For example, the 7119 Number is linked to the LG Phone; online listings for alleged prostitution reference the 7119 Number; and police have possession of text messages from the 7119 Number related to commercial sex acts. In short, the Commonwealth has established independently that information connected to the charged sex trafficking activity is on the LG Phone.
The Commonwealth, however, has not demonstrated with reasonable particularity that Mr. Jones possesses the PIN number for the LG Phone or has access to what that phone contains.
[...]
The phone is not registered to Mr. Jones or to his address. A female voice (McNeill’s) answers voice calls to the 7119 Number. The Commonwealth has provided no evidence of Mr. Jones accessing or entering the PIN number into the LG Phone. The Commonwealth does not suggest that any law enforcement officer called the LG Phone and heard Mr. Jones answer the phone. In addition, Mr. Jones has not admitted to owning or controlling the phone. In short, the Commonwealth has offered no evidence akin to the strong evidence offered in Gelfgatt, where the defendant admitted to encrypting (and being able to decrypt) the computers at his home office.
The Commonwealth relies mainly on statements from Ms. Fortin, who lists the 7119 Number in her phone’s contact list as “Dennis,” and claims the 7119 Number belongs to Mr. Jones. I have not seen a statement from Ms. Fortin that shows she witnessed Mr. Jones using the LG Phone, nor did she describe the physical characteristics of the phone (such as model, color, or general appearance) in a way to suggest she has seen Mr. Jones physically use or enter a PIN into the phone. Defendant challenges Ms. Fortin’s credibility. The Commonwealth seems tacitly to acknowledge Ms. Fortin’s credibility issues, indicating in its search warrant affidavit that it seeks access to the contents of the LG Phone to “corroborate or fail to corroborate” the “key aspects of Ms. Fortin’s statement.”
Because it hasn't reached the "foregone conclusion" standard, the state's demand for a password makes this act testimonial.
In seeking to compel Mr. Jones to provide the PIN for the LG Phone, the Commonwealth is asking Mr. Jones to admit that he owns and/or controls the LG Phone, a fact the Commonwealth believes to be true, but does not know, and has been unable to establish independently.
Law prof Orin Kerr, who has written volumes on Fourth and Fifth Amendment issues, has filed an amicus brief [PDF] in this case. Citing his own draft paper [PDF] on the Fifth Amendment and compelled decryption, Kerr's argument mainly focuses on setting the confines of the "foregone conclusion" standard. His brief rejects both the stricter standard suggested by the defendant and lower standard asked for by the government. (h/t ReleasetheKraken)
The defendant argued for "proof beyond a reasonable doubt" he knew the password to the phone. But Kerr points out that's a standard for convictions, not accessing potential evidence.
Due process requires that the government must prove every element of a crime beyond a reasonable doubt because an individual’s freedom is at stake. Assigning such a high burden acts as “a prime instrument for reducing the risk of convictions resting on factual error.”
In contrast, “the basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system[.]” The individual must plead the Fifth and have a court assess the privilege before (often long before) any trial might occur. Although the individual must show that an answer would be incriminating, the individual may not even be a criminal suspect at that time. The Commonwealth could reasonably know only a small part of the evidence that it would later learn before deciding to bring a criminal case against the individual. For these reasons, the trial standard of proof beyond a reasonable doubt standard is not well-suited for the foregone conclusion doctrine.
According to Kerr, obtaining a password only ties the accused to the unlocked device. Whatever is on the phone may help the government prove its case, but it would not be able to use the suspect's compelled cooperation against him in court. It's not much of a protection, but it's something. It would prevent the government from making inferences about the phone's ownership and instead have to rely solely on the evidence found on the phone. The evidence must make the connection on its own without the government's help.
The government argued for a lower standard, one that would allow it to get its motion to compel granted. It wants a "preponderance of evidence" standard applied to "subsidiary facts." With this, the government could use the evidence provided by the victim to meet the standard needed to compel password production without having to prove on its own that Jones owned the phone it's seeking to unlock. Kerr rejects this as well, saying it introduces an evidentiary standard not needed when evidence is still being sought.
Identifying a standard for “subsidiary facts” arises when a trial court must determine what facts to consider to assess whether evidence is admissible at trial. But as explained above, Gelfgatt motions do not involve trial evidence. The only question is whether the Commonwealth can show by clear and convincing evidence that the subject of the order knows the passcode needed to unlock the device. There are no subsidiary facts to consider.
[...]
Adopting the Commonwealth’s preponderance standard for “subsidiary facts” would only water down the clear and convincing evidence standard. To see why, imagine a reliable informant previously told an officer that a criminal suspect regularly used one of two phones found in an abandoned car. But there’s a catch: The officer’s memory is hazy about which phone the informant identified. Based on the officer’s uncertain testimony, the trial court concludes that there is a 51% chance that the informant identified a particular phone as the one the suspect regularly used.
Now imagine the Commonwealth obtains a Gelfgatt order, the suspect pleads the Fifth, and the reviewing judge must determine if the Commonwealth has proven the suspect’s knowledge of that phone’s password by clear and convincing evidence. How should the court treat the officer’s uncertain testimony? Under the Commonwealth’s approach, the judge must treat as 100% certain that the informant identified that particular phone as the one regularly used by the suspect. Because the Commonwealth established the identification of that phone by a preponderance of the evidence, the judge would have to assume it as a true “subsidiary fact” and consider whether the identification showed by clear and convincing evidence that the suspect knew the phone’s password. That would make little sense.
Doubt about the existence of subsidiary facts should not be ignored simply because the existence of those facts is more likely than not.
Here's what Kerr believes the standard should be for compelled decryption:
A clear and convincing evidence standard strikes me as a fair approximation of a burden needed to eliminate that advantage. When the government can show by clear and convincing evidence that it already knows the facts implicit in the suspect’s testimonial acts, it is highly unlikely that the government will obtain any trial advantage from the testimony implicit in that act. The clear and convincing standard is sufficient to be confident that the government need not and will not rely on the testimonial act at trial to prove its case.
If that's the standard, it's unlikely the government has met it. It is lacking several establishing facts tying Jones to the phone seized from him during his arrest. If so, it cannot compel decryption.
The standard for compelled decryption is continually shifting. There's no on-point precedent from the US Supreme Court standardizing this across federal courts and every state has its own Constitution to consider as well during state-level prosecutions.
This will have to be taken up by the Supreme Court at some point, because producing passwords may not be technically testimonial if the government can meet the "foregone conclusion" standard, but it does lead to the production of evidence the government would have had access to otherwise. Analogies about wall safes and combinations only go so far when phones contain far more potential evidence than could possibly fit into a physical hole in the wall.
Then again, the Fifth Amendment only guards against self-incrimination. What's on locked devices may be incriminating, but unlocking a device only proves you can unlock it. If this element can't be used against a person in court, the government must still link evidence found to the criminal charges sought without drawing inferences from the compelled decryption itself. In many cases, this act won't prove essential to the government's case, even if the wealth of information unveiled ultimately helps secure a conviction.
Since the lines are still muddy, it may be in law enforcement's best interest to seek outside help cracking cellphones, rather than relying on something some courts may find testimonial, or otherwise determine the government hasn't met its burden to compel decryption. The future is going to filled with cases like these, and there's a good chance courts will need to spend more time discussing the implications of other security measures -- like fingerprints and facial recognition -- in terms of Fifth Amendment protections. For now, though, there's a poorly-defined standard making life more difficult for everyone involved in the judicial process to determine what can or can't be done without violating rights.
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Filed Under: 5th amendment, compelled decryption, dennis lee jones, encryption, massachusetts, passwords
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I can tell you exactly where it ends...
Today's phones are essentially external-aux-brains.
With access to everything we do on a daily basis, schedules, phone books, address books, bank accounts, messages, etc... Everything we used to internalize within our own gray-matter is pretty much stored on these devices.
That makes them 110% covered by the 5th.
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Re: I can tell you exactly where it ends...
This is by choice, shooting one's self in the foot so to speak. You are not forced to put all that info in a cell phone or in a cloud or in an app .... that is all bullshit.
It is covered by the 5th amendment, this is clear - however, that does not force others to not steal your info.
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Re: Re: I can tell you exactly where it ends...
Got it...
NOT!!
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Re: Re: Re: I can tell you exactly where it ends...
I wouldn't carry it, but nevermind that. If you did, why would you have personal data on it? (other than location records etc.) I don't imagine the parent poster meant corporate bank accounts, because what's the privacy interest in that?
Don't put personal data on company phones. If you do, the company is more likely to be a problem than the cops.
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Re: Re: Re: Re: I can tell you exactly where it ends...
Exactly ... and if the employer make such a request then it is time for a resume update.
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Re: Re: Re: I can tell you exactly where it ends...
If an employer requires storage, on the company provided cell phone, of all your personal data; bank, 401k, credit card, bills then I doubt they will be in business for very long.
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Re:
Here, he has a choice: if the phone is his, he can claim the fifth--and the government must give that claim full credence: either don't search the phone, or get a warrant. If the phone is not his, the government may do what it likes to the phone, but must prove beyond a reasonable doubt that its evidence shows HIS guilt.
There's a plethora of silly posturing about these phones--the actual crime wasn't committed in the phone, nor was the phone anything but an incidental utility (like a car or gun---communication, travel, and violence all leave other evidence when they actually occur.) If there are no witnesses, no victims, then the phone doesn't matter: if there are, the phone is still only circumstantial evidence.
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Re: Re:
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Conspiracy to withhold evidence?
That is, actually, very close to how journalists get through customs without disclosure. The Journalist would come through with new, unconfigured electronics and a fully encrypted data drive and no keys. Once he was past all the checks, he'd contact the office at home to get the keys.
A nation could choose not to let him in (or even confiscate the data) but then the nation would be known for being hostile to journalists.
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Combination Safe
It seems like giving up phone codes should be the same thing.
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Just get rid of the 5th
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Re: Just get rid of the 5th
Text of the fifth:
"“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 [sic] 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.”
I'll give you the benefit of the doubt and assume you only want to get rid of the "nor shall be compelled in any criminal case to be a witness against himself" part, since I can't see any reason anyone would be against "due process of law" or "just compensation" or the Grand Jury indictment requirement - these are all things that help prevent tyrannical actions.
The portion you would get rid of does, however, protect innocent people. The thing about talking to law enforcement when you are a suspect, or being on trial, or etc. etc. is that, well, under stress and pressure you can say things that make you look guilty, even when you aren't. Your own testimonial could easily falsely accuse you.
The Fifth allows you to just shut up and not say anything, and thereby avoid the pitfalls of trying to defend yourself and saying exactly the wrong thing.
This portion of the Fifth would also act as the foundation on which "confessions under duress" would be no longer legally viable. Consider a tyrannical state that decides you should be locked up for some reason - your house is in the way of a development project. You're the wrong race. You insulted the head honcho.
Police come to your house and arrest you and use high-pressure interrogation tactics or torture or whatever, and you confess to whatever it is that they want you to confess to because goddammit you want the pain and stress to end.
This is a case of "compelled to be a witness against yourself." The Fifth is the foundation on which this type of behavior and tactics is understood to be illegal, and would get that false confession thrown out.
You may trust our current judicial system and law enforcement, but remember that without that provision, they could be so, so, so much worse.
Remember that the Bill of Rights was created in reaction to actual, observed abuses by governmental agencies in the lifetimes of the drafters.
I would rather it exist and keep the system honest, than get rid of it because some guilty parties are able to hide behind it - its lack would, I think, just result in more abuse of the public in general by authorities, which is an outcome I would like to avoid.
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Re: Re: Just get rid of the 5th
Or, Poe's law? They might be stating it from the point of view cops/prosecutors project.
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Re: Re: Re: Just get rid of the 5th
If it was intended as satire, it was not made nearly clear enough for the medium it was delivered in. Given that lack, I'd rather respond seriously to a sarcastic comment than let an actual opinion as problematic as this one pass without at least an attempt at talking it out and explain why I think it's a bad, bad idea.
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Re: Re: Just get rid of the 5th
Clearly then you've not seen Marsy's Law. Which is basically written by someone in the anger stages of grief, that removes any semblance of due process.
The current groupthink is that you should be able to demand punishment based on accusation alone, and that requiring such things like evidence, accountability, and seeking the actual truth is putting too much pressure and burden on the self-proclaimed victim. To quote the legislation as it is written in one state:
It's clearly targeted at making things like "the right to face your accuser in court" outright banned based on the whims of said accuser, and other things like "evidence" and "testimony" optional in court also based solely on the whims of the accuser. It's also disingenuous because it tries to claim no alteration of the "presumption of innocence" while clearly making the expectation known that despite lack of evidence and due process, the accuser can still secure a guilty verdict from the court.
Given that 5 states already implement a similar law, including the state where it originated: California, and 6 more states are voting on such measures in November. I'd say there's quite a few people who are chomping at the bit to have due process "gotten rid of."
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Re: Re: Re: Just get rid of the 5th
However, due consideration of the crime victim's safety, dignity, and privacy should not impact on due process. Yes, the accused should have the right to face their accusers in court, but that should not be turned into the right for them to inflict even more terror or abuse on their victims, particularly in the case of an abused child. Revealing the parties' names to the press should not be allowed; neither the accuser nor the accused should be subjected to trial by media until after the proceedings have ended as the accusation can ruin someone's life even after they've been found innocent.
If there's a flaw in the law, deal with it, but be fair. I've seen what the fear of taking an abuser to court can do to a person because she was afraid of effectively being hung out to dry as some kind of reality entertainment. The rights of a victim ought to be balanced with the rights of the accused to a fair trial, with the accused's safety, dignity, and privacy equally protected. No more perp-walking! Is that fair?
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Re: Re: Re: Re: Just get rid of the 5th
> allowed; neither the accuser nor the accused should be
> subjected to trial by media until after the proceedings
> have ended
How do you suppose it would be possible to keep the parties' identities from the press in, for example, the OJ trial?
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Re: Re: Just get rid of the 5th
"The Fifth allows you to just shut up and not say anything, and thereby avoid the pitfalls of trying to defend yourself and saying exactly the wrong thing."
At the time when the founding fathers formulated the constitution they'd just escaped from the rule of the british crown where it was pretty much given that in practice you could be accused only to face a morton's fork-style situation where not pleading guilty could itself condemn you.
The 5th is, among other things, a safeguard from a situation where a person who refuses to speak can not be incriminated for it.
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Re: Re: Just get rid of the 5th
"Police come to your house and arrest you and use high-pressure interrogation tactics or torture or whatever, and you confess to whatever it is that they want you to confess to because goddammit you want the pain and stress to end."
In other words, "enhanced interrogation". That part of Abu Ghraib which made several congressmen physically ill which neither prevented Cheney speaking out in favor of torture in stentorian terms nor managed to get rid of it as a permanent staple of US law enforcement.
"I would rather it exist and keep the system honest, than get rid of it because some guilty parties are able to hide behind it - its lack would, I think, just result in more abuse of the public in general by authorities, which is an outcome I would like to avoid."
Too late by far. GWB more or less cemented "enhanced interrogation" as a trusty stand-by and not even Obama had the balls to try to strip that fascinating toy from the sadistic thugs who operate and maintain Gitmo.
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The CIA Extrajudicial Detention and Interrogation Program
The CIA program was admittedly extrajudicial, and presumed that the treatment of its victims denied them Constitutional rights, including the right to liberty, and in some cases, life.
The pretense of it was the notion that terrorists were secret agents of another state, and thus could be regarded as spies (who do not Geneva Convention protections as POWs). On the other hand, the US process of confirming their identities and that they were spies was wildly inaccurate. Often they got the wrong guy, including some innocent Americans.
It's more evidence that the rights enumerated in the US Constitution (or anywhere else) are only as good as the methods that enforce them, and corruption and insufficient concern can all-too-easily strip us of those rights.
Oh, and maybe it shouldn't be so easy for our rights to be stripped from us.
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Re: Just get rid of the 5th
- I don't know .. that's why we need to look.
Backwards law enforcement is a wonderful tool for the narcissist in your community.
- What's backward about it when you're guilty?
We are all guilty all the time now aren't we? Hands behind your back - stop resisting.
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Re: Just get rid of the 5th
Speaking of which, I hear that a certain AC advocating the removal of the 5th amendment is guilty of a number of horrible crimes. We should lock him up and tell him he's not getting out until he confesses to all his many crimes. And then when he confesses we should lock him up for life for committing all those crimes.
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Re: Just get rid of the 5th
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just cut to the chase
The police, courts, and crime dramas have already tricked people into thinking only criminals invoke the 5th, and the police have been taking private property for public use like... since for fucking ever.
Grand Juries are procedural kangaroo courts able to indict a ham sammich!
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Kerr tries to salvage tyranny...
The phone is *very much* the contents of your mind, as is the password/unlock method. Whatever happened to the right to be secure in one's papers???
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Re: Kerr tries to salvage tyranny...
In this instance, the power of the cops to search has gone a very long way in the direction of being able to oppress people. I am making the argument that
a) in most people's minds, there is little difference between a locked phone, whether it is locked with a password or with a fingerprint, and the two ought to be treated consistently.
b) the balance of power is distinctly tilted towards the police when they access someone's personal locked phone, which contains a *huge* amount of history. I am claiming that a warrant based on a one-sided story told to a judge should be *insufficient* to command that much power. Perhaps the right approach is along the lines of a special master who acts as an honest broker, allowing police to request specific searches only.
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People who harp on that point are idiots. According to Merriam-Webster, the only difference between 'Commonwealth' and 'state' is the spelling.
https://www.merriam-webster.com/words-at-play/whats-the-difference-between-a-commonwealth-a nd-a-state
It's perfectly fine to call Massachusetts a state.
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Re: It's perfectly fine to call Massachusetts a state.
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Re: tl;dr
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The disclaimer got me to look it up too.
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The disclaimer got me to look it up too.
Wikipedia says a commonwealth is a republic which is, itself, a state. The US is normally regarded as a state of states. With commonwealths, that makes it a state of state of states. It's recursive upward and downward as necessary.
don'thitenterinthesubjectlinedon'thitenterinthesubjectlinedon'thitenterinthesubjectline
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Re: commonwealth is a republic
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da 5th..
Think of the rules you would love to create and be a MAJOR CROOK/THIEF/...
NOW think of WHO the Constitution protects,,
We even made a law against Organized crime, where even if you DIDNT DO IT, we could send you to jail..
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This phone will self distruct in 5 seconds
Would this trigger a destruction of evidence charge? Nothing overt was done to destroy the data when the phone was unlocked. There was no way to avoid the deletion. It was done by a scheduled process possibly hours before the phone was unlocked.
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This raises the question...
Since our united front of police agencies have a dozen or so tools by which to crack all the phonez, why is this even an issue? Why haven't the police just unlocked the phone by force to see if the information on it implicates to whom it belongs?
At this point it might be worth arguing that the prosecutor is seeking a court order to establish a precedent, not because the state is unable to unlock phones.
That is, at least, what the public has been led to believe.
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privilege against self-incrimination
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Privileges vs. rights
A privilege is a right that only some people have. A right is something that everyone is entitled to. When it comes to the Bill of Rights, courts have often ruled that even non-Americans are entitled to them.
Some people get into natural rights which cannot be taken away -- or, as I understand it, cannot be taken away without transgressing some ethics or codes of conduct. They can still be taken away by an agent that doesn't adhere to those ethics (by, say, a tiger, or an authoritarian dictator).
As law enforcement and other agents of state have demonstrated so often, rights are only as good as the mechanism that enforces them, so when rights are ignored by the legal system, when violations are not detected or are detected but not responded to, then those rights quickly evaporate.
Currently, confidence in the Bill of Rights is low, given how many ways state agents are allowed to violate them, which raises question as to how they're natural rights.
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Re: privilege against self-incrimination
"I always thought this was a right not just a privilege which can be taken away whereas a right cannot."
Basically the distinction is thus:
A privilege is a certain entitlement to immunity granted by the state or another authority to a restricted group, either by birth or on a conditional basis.
a right is an inherent, irrevocable entitlement held by all citizens or all human beings from the moment of birth.
You are correct that a right can not be taken away where a privilege CAN. unfortunately most of the US constitution is about privilege - you can be disenfranchized and lose a great many constitutional protections indefinitely, for instance.
Whereas according to the UN declaration of human rights you can never lose the right - but it can, in some cases, be infringed upon by government action at great need and for a defined period of time.
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Hmm... What about other kinds of encryption?
This case leads to some interesting thought experiments. Suppose that I type a diary using a typewriter and some hard-to-break cipher. Would this be treated any differently? Might I be compelled to give a decryption key? What if I claimed that there was no encryption at all, and I was just typing gibberish? Does the fact that this case involves a computer, which encrypts and decrypts data more efficiently, change anything?
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Re: Hmm... What about other kinds of encryption?
Now I supply password2 to the cops...
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Multiple-partition encryption blocks
This is the current workaround for those who bother. Many commercial offerings allow the end user to partition an encryption block to be receptive to multiple passwords which unlock different blocks of data.
The bad news is this: once the DoJ catches on, they can just continue to insist a suspect be compelled to open one more block, until there aren't any more, and the suspect can't do anything. Then he's locked up for fourteen years on contempt.
But the tech is beyond that. We can also make encrypted data blocks look like unused memory space, which means the DoJ can insist that any allocated memory block is really encrypted data.
There's a point that a court may find all this absurd, but that point may not be one where the suspect is free. Here in the US we like to fill our prisons to teeming.
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Simple rule of thumb
Could the demanded act itself be evidence, or provide access to evidence that is currently not possessed, that could be incriminating/used against the one the demand is aimed at?
If YES, the fifth covers it, the demand is illegal.
If NO, the fifth does not cover it, demand is legal.
And of course, as always, the easiest way they could bypass the concerns about the fifth would be to provide a written, legally binding offer of immunity for anything resulting from the demanded action. If what they are trying to get isn't self-incriminating than they lose nothing from doing so, such an offer is only problematic when they do plan on using the results of the act(and/or the act itself) against the person the demands are for.
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