"Unquestionably, the State established, with reasonable particularity, its knowledge of the existence of the passcode, Stahl's control or possession of the passcode, and the self-authenticating nature of the passcode. This is a case of surrender and not testimony."
Talk about twisting the law to meet your own needs. I don't condone what this person is alleged to have done but you don't set legal precedent on a case like this. One person's voyeurism is another's business (paparazzi), and a well paid one at that! Add all the YouTube videos drunken young (and older) adults posts and why is this person even in court? They have witnesses who saw him take the photos, just fine him for a misdemeanor and quit wasting our taxpayers money.
Ever since courts enshrined the phrase "compelling state interest" into case law, it was only a matter of time.
What's to say he hasn't "forgotten" the passcode now? The stress of the situation has maybe blurred his memory, I know there has been times I've completely forgotten my ATM pincode for an entire day then it suddenly came back to me the next day as if it was second nature to enter it. They would then have to prove contempt of court on whether he genuinely forgot or not, and how the hell do you "prove" that one way or another?!
True. In fact, I'm running an update on my phone right now and it asked me for the passcode. Strangely, if it asked me on the regular sign-on screen, I would remember it. But because this screen is slightly different, I got thrown and threw a blank for a bit. And that happens to me quite often: I forget passwords if I don't use them every day or almost every day.
But I'm puzzled about one thing: how old is his iPhone? Because if he has fingerprint control turned on, they don't need his passcode, only his finger. I wonder why this didn't come up in court - even if the court ruled that he "has to" provide the passcode, would he be forced to use his finger to open the phone?
Precedent for this was set in a 1988 Supreme Court decision, which suggested that while a person could be forced to turn over a key to a strongbox, for instance, they couldn't be made to share the combination to a safe.
Writing on behalf of a three-judge panel however, appeals court judge Anthony Black questioned "whether identifying the key which will open the strongbox -- such that the key is surrendered -- is, in fact, distinct from telling an officer the combination," as well as the viability of any such argument with growing advances in technology.
If you can't be forced to hand over the combination to a safe, how is the combination to a phone any different? And don't you always have the right to remain silent? It seems like this would be covered by the fifth amendment.
My sentiments exactly. This court is completely trampling the US Constitution and higher court precedent into the dirt.
People who feel strongly on both sides of the issue -- and there are very good arguments on both sides -- see it in black-and-white terms, unfortunately.
For the "liberty or death" types, what if this was a ticking time bomb that might kill or maim you friends or family, for instance? Would you feel differently? Similarly, for the "allow the police to see the iPhone's content at all times" types, what about the slippery slope that essentially invites government intrusion of all sorts into your private life, including family communications, lawyer communications, finances, health records, trade secrets, browsing habits... in fact, why not just allow the government to tap all connected devices all the time and store everything in a giant database?
As always, it is a matter of balance. That is why we have courts. Hopefully, an efficient process can be set up, and it is one that looks at the modalities of a particular case to decide. Of course, this assumes that we have courts and judges that are sensible, and not like the brazenly craven FISA court that is a rubber stamp for the spooks in the executive branch.
Unfortunately, while the 'grey' approach to things can provide some immediate resolution, the long-term effect is deterimental. Since a grey approach is essentially a compromise, if the issue is continually challenged you will end up with compromises over a period of time, and eventually the scale will be definitively tipped one way or the other anyway and you will end up with a 'black or white' solution, except you then have a lot of negative baggage along with the solution. If the issue isn't continually challenged and a black or white solution isn't reached, you end up with a foggy approach to a problem that doesn't have clear expectations or reasoning behind the results. A good example is the ACA, which may have had good intentions but is a foggy mess because of compromises—grey solutions to problems.
Balance is important, but grey is not balance, it's the opposite of balance. We need balance overall, and you achieve balance through black or white solutions. It requires personal sacrifice, and since people are selfish and don't want to sacrifice anything, we end up with a grey mess of laws and approaches to problems and create an overly complicated and bloated culture.
What Apple needs to do is let the user setup a "self-destruct" passcode that, if entered, deletes user data for all/selected apps. (Tying this to a specific fingerprint wouldn't hurt things either.)
Being able to delete selected applications or wipe application data is key, as typically you'd like the authorities to think they're looking at an ordinary phone, while in reality you've deleted all of the app data for Message or Facebook or Twitter or Mail, protecting that information and those communications and contacts.
"0-0-0-Destruct-1"
Everyone knows that
Umm...that's not the code I think you are referring to. I can give the correct one to you if you give the countermove:
this is certainly an anomaly that needs to be resolved. clearly deliberately giving miss password or deliberately causing the iPhone to wipe would be in the realms of active obstruction of the law and so likely illegal as are most forms of destroying evidence. further security layers make this even more complex. what if you had a mode where there was no password and only finger print or retina scan could unlock. what if you use a separate tool to lock and unlock something and use those super difficult cannot remember passwords. what about if you set up two factor authentication and two people each only know one factor ???
bottom line is that the supreme court needs to get out of the weeds and work out the fundamental rights here...
What Apple needs to do is let the user setup a "self-destruct" passcode that, if entered, deletes user data for all/selected apps. (Tying this to a specific fingerprint wouldn't hurt things either.)
Being able to delete selected applications or wipe application data is key, as typically you'd like the authorities to think they're looking at an ordinary phone, while in reality you've deleted all of the app data for Message or Facebook or Twitter or Mail, protecting that information and those communications and contacts.
"0-0-0-Destruct-1"
Everyone knows that
Umm...that's not the code I think you are referring to. I can give the correct one to you if you give the countermove:
People who feel strongly on both sides of the issue -- and there are very good arguments on both sides -- see it in black-and-white terms, unfortunately.
For the "liberty or death" types, what if this was a ticking time bomb that might kill or maim you friends or family, for instance? Would you feel differently? Similarly, for the "allow the police to see the iPhone's content at all times" types, what about the slippery slope that essentially invites government intrusion of all sorts into your private life, including family communications, lawyer communications, finances, health records, trade secrets, browsing habits... in fact, why not just allow the government to tap all connected devices all the time and store everything in a giant database?
As always, it is a matter of balance. That is why we have courts. Hopefully, an efficient process can be set up, and it is one that looks at the modalities of a particular case to decide. Of course, this assumes that we have courts and judges that are sensible, and not like the brazenly craven FISA court that is a rubber stamp for the spooks in the executive branch.
The ticking-time-bomb scenario is easy to dramatize but difficult to encounter. It's extraordinarily chancy that the combination of factors would occur: law enforcement actually catching someone in the act, gaining control and accurate knowledge of all aspects of the situation, except for one terrible thing that will still happen and can't be stopped in any way except with a passcode in exclusive possession of one person they also have control and accurate knowlege of. This is one-in-a-billion stuff — absolutely not what policy should be based upon, because the routine use of that policy will be in much more mundane, non-emergency situations that lack similar emotional urgency.
There have been quite a few instances of child or other types (esp. of women) abductions and captivity that would fall into this category for me.
What's to say he hasn't "forgotten" the passcode now? The stress of the situation has maybe blurred his memory, I know there has been times I've completely forgotten my ATM pincode for an entire day then it suddenly came back to me the next day as if it was second nature to enter it. They would then have to prove contempt of court on whether he genuinely forgot or not, and how the hell do you "prove" that one way or another?!
True. In fact, I'm running an update on my phone right now and it asked me for the passcode. Strangely, if it asked me on the regular sign-on screen, I would remember it. But because this screen is slightly different, I got thrown and threw a blank for a bit. And that happens to me quite often: I forget passwords if I don't use them every day or almost every day.
But I'm puzzled about one thing: how old is his iPhone? Because if he has fingerprint control turned on, they don't need his passcode, only his finger. I wonder why this didn't come up in court - even if the court ruled that he "has to" provide the passcode, would he be forced to use his finger to open the phone?
If one opens their phone using a fingerprint (versus a password) that person CAN be legally compelled to open their phone using their fingerprint.
Precedent for this was set in a 1988 Supreme Court decision, which suggested that while a person could be forced to turn over a key to a strongbox, for instance, they couldn't be made to share the combination to a safe.
Writing on behalf of a three-judge panel however, appeals court judge Anthony Black questioned "whether identifying the key which will open the strongbox -- such that the key is surrendered -- is, in fact, distinct from telling an officer the combination," as well as the viability of any such argument with growing advances in technology.
If you can't be forced to hand over the combination to a safe, how is the combination to a phone any different? And don't you always have the right to remain silent? It seems like this would be covered by the fifth amendment.
It's a blatant attempt to scare the person being charged and cannot be defended on constitutional grounds.
What Apple needs to do is let the user setup a "self-destruct" passcode that, if entered, deletes user data for all/selected apps. (Tying this to a specific fingerprint wouldn't hurt things either.)
Being able to delete selected applications or wipe application data is key, as typically you'd like the authorities to think they're looking at an ordinary phone, while in reality you've deleted all of the app data for Message or Facebook or Twitter or Mail, protecting that information and those communications and contacts.
"0-0-0-Destruct-1"
Everyone knows that
Umm...that's not the code I think you are referring to. I can give the correct one to you if you give the countermove:
Queen to Queens level three
Queen to King's level 1
I believe the command you are looking for, captain, is "0-0-0-destruct-0" From 10s down, no command in the universe can keep the computer form carrying out its order.
A court certainly can order it. It will most likely be overturned by a higher authority. That lower court may have to deal with the consequences however.
This is as clear a case of "self-incrimination" as there could possibly be, and is flatly unconstitutional on the face of it. One hopes that a higher court will have judges who have read that document.
On another note, you'll notice how compelling a passcode is now being used NOT to fight terrorism or drug trafficking or child molesting, but for petty crimes. On top of the fact that this is extra-Constitutional, any decent American should be terrified of where this is going.
What Apple needs to do is let the user setup a "self-destruct" passcode that, if entered, deletes user data for all/selected apps. (Tying this to a specific fingerprint wouldn't hurt things either.)
Being able to delete selected applications or wipe application data is key, as typically you'd like the authorities to think they're looking at an ordinary phone, while in reality you've deleted all of the app data for Message or Facebook or Twitter or Mail, protecting that information and those communications and contacts.
"0-0-0-Destruct-1"
Everyone knows that
That's tempering with evidence, at this juncture the phone is now the property of law enforcement, if you knowingly enter an incorrect passcode with the intention of destroying police evidence you will be convicted as though the original accusation was well proven thus adding what ever terms that particular crime carries in addition to doing the opposite of what the court ordered you do, remember its not a request, it's a demand that carries punishment if not followed to the letter that's why Apple can't refuse court orders, and can't mess with the information in their own servers because as soon as the order is rendered what ever is requested is thence owned by the authorities, well at least that's how it is over here
Wait just a minute. Let me ask: At what point did the phone become the property of law enforcement? Isn't it still the property of the original owner unless it was taken under civil forfeiture (that is, the property was accused of a crime) or the government compensated the owner for it (takings clause of the Fifth Amendment)?
Otherwise, the accused can say, "I don't know, I don't own that phone" can't they?
And, we have the presumption of innocence. If the evidence isn't there, even if the phone is destroyed, we can't presume that the accusation was proven - facts not in evidence. Tampering with evidence is it's own crime, punishable separately. You can't punish for the original accusation because it's not in evidence, but you can punish for the tampering, because that very clearly was witnessed.
I think from your statement, "well at least that's how it is over here" that you're coming from a standpoint of non-US law. I may be incorrect (very likely when it comes to matters of law. no one should take legal advice from me!) but US law is different than what you're stating - it doesn't work the way you say it does over here.
What Apple needs to do is let the user setup a "self-destruct" passcode that, if entered, deletes user data for all/selected apps. (Tying this to a specific fingerprint wouldn't hurt things either.)
Being able to delete selected applications or wipe application data is key, as typically you'd like the authorities to think they're looking at an ordinary phone, while in reality you've deleted all of the app data for Message or Facebook or Twitter or Mail, protecting that information and those communications and contacts.
"0-0-0-Destruct-1"
Everyone knows that
That's tempering with evidence, at this juncture the phone is now the property of law enforcement, if you knowingly enter an incorrect passcode with the intention of destroying police evidence you will be convicted as though the original accusation was well proven thus adding what ever terms that particular crime carries in addition to doing the opposite of what the court ordered you do, remember its not a request, it's a demand that carries punishment if not followed to the letter that's why Apple can't refuse court orders, and can't mess with the information in their own servers because as soon as the order is rendered what ever is requested is thence owned by the authorities, well at least that's how it is over here
Wait just a minute. Let me ask: At what point did the phone become the property of law enforcement? Isn't it still the property of the original owner unless it was taken under civil forfeiture (that is, the property was accused of a crime) or the government compensated the owner for it (takings clause of the Fifth Amendment)?
Otherwise, the accused can say, "I don't know, I don't own that phone" can't they?
And, we have the presumption of innocence. If the evidence isn't there, even if the phone is destroyed, we can't presume that the accusation was proven - facts not in evidence. Tampering with evidence is it's own crime, punishable separately. You can't punish for the original accusation because it's not in evidence, but you can punish for the tampering, because that very clearly was witnessed.
I think from your statement, "well at least that's how it is over here" that you're coming from a standpoint of non-US law. I may be incorrect (very likely when it comes to matters of law. no one should take legal advice from me!) but US law is different than what you're stating - it doesn't work the way you say it does over here.
Yes I'm commenting on non US law But would have imagine its the same there, but to you're point of the phone becoming property of law enforcement, it does so when it is seized as evidenced, if some one gets murdered in you're house, you can't continue to live there as you see fit, even though it still is you're house, as it turns in to a "crime scene" that you the owner have no authority over, temporarily, it's the same with the phone. To your point about the original accusation being proven by destroying evidence, it is so based on a form of reasonableness (I would think) the question would be " would a reasonable person destroy evidence that supposedly proves something he knows he or she didn't do ? If you didn't do it then why destroy the phone ?" a situation which from a legal stand point infers guilt as its execution by its nature could only benefit a person guilty of the accusation, and also thats why a person can still be convicted even if they plead the 5th and say nothing, which is technically making evidence unavailable to the court by not answering questions, which in some ways is no different from refusing to open the safe, in fact that's the same reason that evidence ownership is lost by the original owner so as to allow for the means of justice to prevail and establish guilt or innocence, otherwise forensic law wouldn't work as owners would render the hole process nonfunctional if you did something wrong and a thing you own proves this and cops had to ask for you permission to have it would you give it to them ? If you murder some one in your house and police required you consent to enter and collect evidence in your house would you let em in ?. I'm no expect my self just deductions as well, but that's how I understand things to be
Comments
Balance is important, but grey is not balance, it's the opposite of balance. We need balance overall, and you achieve balance through black or white solutions. It requires personal sacrifice, and since people are selfish and don't want to sacrifice anything, we end up with a grey mess of laws and approaches to problems and create an overly complicated and bloated culture.
Queen to Queens level three
bottom line is that the supreme court needs to get out of the weeds and work out the fundamental rights here...
http://www.slate.com/blogs/future_tense/2015/09/25/court_rules_that_defendants_don_t_have_to_provide_smartphone_passcodes.html
It's a blatant attempt to scare the person being charged and cannot be defended on constitutional grounds.
Otherwise, the accused can say, "I don't know, I don't own that phone" can't they?
And, we have the presumption of innocence. If the evidence isn't there, even if the phone is destroyed, we can't presume that the accusation was proven - facts not in evidence. Tampering with evidence is it's own crime, punishable separately. You can't punish for the original accusation because it's not in evidence, but you can punish for the tampering, because that very clearly was witnessed.
I think from your statement, "well at least that's how it is over here" that you're coming from a standpoint of non-US law. I may be incorrect (very likely when it comes to matters of law. no one should take legal advice from me!) but US law is different than what you're stating - it doesn't work the way you say it does over here.