New Jersey Court rules suspects can be compelled to hand over phone passcodes
The New Jersey Supreme Court has ruled a defendant can be forced to give up their iPhone's passcode, a decision that goes against arguments that such actions violate the Fifth Amendment.
The court agreed with prosecutors when asked about locked smartphones and whether they have to be given up to law enforcement, as part of an investigation into a former Essex County sheriff's officer and their dealings with a Bloods street gang. The court decided to rule in favor, but narrowly, with the decision being 4-3 for the motion.
The decision, as reported by NorthJersey.com, rejects the argument that providing access to a smartphone's locked data violates the Fifth Amendment of the U.S. Constitution, which protects against self-incrimination.
The ruling forces former officer Robert Andrews to hand over passcodes for two smartphones to investigators. Andrews has been charged with multiple counts of official misconduct, as well as hindering apprehension and obstruction, for allegedly tipping off a person of interest ahead of their arrest in 2015.
After admitting to having conversed Andrews, authorities found evidence of 114 exchanges between the officer and the person of interest. When a warrant was secured for a closer inspection, Andrews claimed providing the passcodes was the equivalent of being compelled to provide "testimony" that could be self-incriminating.
The state told the court that this doesn't apply due to the "foregone conclusion exception" of the Fifth Amendment, namely that they knew messages existed and the only thing preventing access was Andrews' passcode.
According to the Electronic Privacy Information Center counsel Megan Iorio, whom provided a brief to the court on behalf of Andrews, the court "emphasized that the search warrant in this case was significantly narrowed by a trial court order, and that decision did not give law enforcement license to conduct a fishing expedition."
The ruling is the latest event in an ongoing series of rulings concerning whether demanding passcode or biometric access to mobile devices is permissible, with courts varying their rulings over time.
In January 2019, a federal judge in California ruled Face ID and Touch ID unlocks couldn't be compelled by law enforcement officials, a decision agreed upon by a US magistrate in August that same year. However, in 2016, a Los Angeles court ordered a woman to unlock her Touch ID-secured iPhone as part of an FBI investigation into the Armenian Power gang.
The court agreed with prosecutors when asked about locked smartphones and whether they have to be given up to law enforcement, as part of an investigation into a former Essex County sheriff's officer and their dealings with a Bloods street gang. The court decided to rule in favor, but narrowly, with the decision being 4-3 for the motion.
The decision, as reported by NorthJersey.com, rejects the argument that providing access to a smartphone's locked data violates the Fifth Amendment of the U.S. Constitution, which protects against self-incrimination.
The ruling forces former officer Robert Andrews to hand over passcodes for two smartphones to investigators. Andrews has been charged with multiple counts of official misconduct, as well as hindering apprehension and obstruction, for allegedly tipping off a person of interest ahead of their arrest in 2015.
After admitting to having conversed Andrews, authorities found evidence of 114 exchanges between the officer and the person of interest. When a warrant was secured for a closer inspection, Andrews claimed providing the passcodes was the equivalent of being compelled to provide "testimony" that could be self-incriminating.
The state told the court that this doesn't apply due to the "foregone conclusion exception" of the Fifth Amendment, namely that they knew messages existed and the only thing preventing access was Andrews' passcode.
According to the Electronic Privacy Information Center counsel Megan Iorio, whom provided a brief to the court on behalf of Andrews, the court "emphasized that the search warrant in this case was significantly narrowed by a trial court order, and that decision did not give law enforcement license to conduct a fishing expedition."
The ruling is the latest event in an ongoing series of rulings concerning whether demanding passcode or biometric access to mobile devices is permissible, with courts varying their rulings over time.
In January 2019, a federal judge in California ruled Face ID and Touch ID unlocks couldn't be compelled by law enforcement officials, a decision agreed upon by a US magistrate in August that same year. However, in 2016, a Los Angeles court ordered a woman to unlock her Touch ID-secured iPhone as part of an FBI investigation into the Armenian Power gang.
Comments
If you don't trust your government you need a new government.
The 'foregone conclusion' argument they state still doesn't make sense to me. Even if they know the messages exist, they don't know the content. If their mere existence was enough evidence, they wouldn't need the warrant and passcode, so it would stand to reason that the content of the messages is the real issue. Providing the passcode is tantamount to providing the content and would seem to be self-incrimination.
Warrants are too easy to get. It's a broken system enabled by the very citizens who pay for the system. Too many people defend police for no reason other than because movies tell them they're the good guy. Same with people who repeat "I trust my government."
In my old neighborhood cops wouldn't even receive warrants. They'd be in your backyard for no reason except to fu** with you and piss you off. When you asked for a warrant they'd just harass you. We were poor, not like we could sue the city. They knew that.
The US supreme court has ruled that a warrant is required.
As Ars reported today: "Ultimately, the only way to resolve this dispute is for the US Supreme Court to get involved. The high court hasn't ruled on the legality of compelled decryptions of smartphones or other digital devices. Indeed, most of the Fifth Amendment caselaw in this era predates smartphones—and in many cases the personal computer, too. It would be helpful for the nation's highest court to take this issue on and provide clarity to courts that are struggling with how to apply these decades-old precedents."
https://arstechnica.com/tech-policy/2020/08/nj-supreme-court-no-5th-amendment-right-not-to-unlock-your-phone/
You got it wrong. We’ve had safes for over a century. Are you compelled to give up the combo when they get a warrant? No. If you don’t, they need to crack it. The principle is not being compelled to tell what you hold in your mind.
As I read it, they did just exactly that. The article reported:
As I said above: If you don't trust your government you need to get another government. That's probably the biggest benefit of a democracy,. It's not perfect, but it does have the best protections from corruption and tyranny.
The issue is whether someone can be forced to help the government search a smartphone. And it's really more than that. The issue is really whether the government can force someone to help recreate evidence which the government hopes is on a smartphone. If the government has a smartphone, it already has what's on the smartphone. It can, if it wants and with a modest amount of work, read the data which is stored on the phone. But that data is typically gibberish because it's encrypted. Various governments want to be able to force people to help make sense of that gibberish for them - to effectively translate it into something which might, among other things, effectively be used in a legal proceeding. Decrypting a smartphone is recreating information which, prior to decryption, no longer exists. And people should not be required to help do that any more than they should be required to translate a coded journal. Entering a passcode to decrypt a smartphone isn't the same as providing a key to get into a room or safe.
That said, the Supreme Court has already said that - when it comes to 4th Amendment considerations - smartphones are different because they contain so much private information. The Court will, at some point, need to settle this specific question - whether, and under what circumstances, someone can be forced to decrypt a smartphone for law enforcement.