I hope the bastard gets worse than life. I support law enforcement gaining access to child abusers’ devices so they can put them away.
If they already know they're a child abuser, then there should be evidence aside from the phone, so they don't need the phone. And if all the evidence is supposedly on the device, they don't really know that the person is a child abuser before they examine the phone, which means that they're breaking into phones from people who might not be guilty. Do you support law enforcement gaining access to your phone if you were so accused, perhaps by mistaken identity?
I hope the bastard gets worse than life. I support law enforcement gaining access to child abusers’ devices so they can put them away.
Do you support back doors to allow police to get into any device they want?
Yes, I do, with a warrant issued by a judge. If the police can get a warrant to search your home then they should be able to search your phone too, with a warrant. You lock your front door to prevent entry to your home but the police can break that door down, enter and search, with a warrant. If you have a safe the police can drill it open with a warrant. What part of the Fourth Amendment do you not understand? What’s the difference between your home and your phone?
Simple. The police can’t compel you to give the safe combination or open the save yourself. They are free to crack it or otherwise force entry to it with their warrant. Should be the same with a smartphone; they are free to break the encryption if they can or disassemble the phone and use a scanning electron microscope to attempt to access data on chips. But they probably shouldn’t be allowed to compel the phone’s owner to unlock it.
Also, there’s the bit about speech and self-incrimination. The iPhone doesn’t contain information like a safe might contain documents and other evidence of crime. It contains a bunch of random looking data, which is of course not random but instead is encrypted. The only way to unencrypt that data is to provide the encryption key, part of which is the user’s password, Touch ID data or Face ID data. That information is used to turn useless encrypted streams into criminal evidence and it seems to me there might be a case that compelling a suspect to assist is forcing him/her to interpret that data, which might fall under compelled speech or self-incrimination. Ergo, there’s a good chance it may be found to be illegal if/when challenged.
I hope the bastard gets worse than life. I support law enforcement gaining access to child abusers’ devices so they can put them away.
Do you support back doors to allow police to get into any device they want?
Yes, I do, with a warrant issued by a judge. If the police can get a warrant to search your home then they should be able to search your phone too, with a warrant. You lock your front door to prevent entry to your home but the police can break that door down, enter and search, with a warrant. If you have a safe the police can drill it open with a warrant. What part of the Fourth Amendment do you not understand? What’s the difference between your home and your phone?
Simple. The police can’t compel you to give the safe combination or open the save yourself. They are free to crack it or otherwise force entry to it with their warrant. Should be the same with a smartphone; they are free to break the encryption if they can or disassemble the phone and use a scanning electron microscope to attempt to access data on chips. But they probably shouldn’t be allowed to compel the phone’s owner to unlock it.
Also, there’s the bit about speech and self-incrimination. The iPhone doesn’t contain information like a safe might contain documents and other evidence of crime. It contains a bunch of random looking data, which is of course not random but instead is encrypted. The only way to unencrypt that data is to provide the encryption key, part of which is the user’s password, Touch ID data or Face ID data. That information is used to turn useless encrypted streams into criminal evidence and it seems to me there might be a case that compelling a suspect to assist is forcing him/her to interpret that data, which might fall under compelled speech or self-incrimination. Ergo, there’s a good chance it may be found to be illegal if/when challenged.
And like I said later, NONE of us are qualified to make any kind of arguments about the legality or illegality of how authorities may obtain information. We can blather all we want to about what’s different between searching a home and searching a phone but at some point the issue will be resolved by the judicial system. And as for encryption to avoid prying eyes, that’s been going on for thousands of years too in various forms. And don’t say it’s impossible to decrypt modern encryption. With quantum computing on the horizon who knows what kind of power the authorities will have at their disposal. Encrypting and cracking that encrypting is a cat and mouse game just like it has been since homo sapiens stood up on two legs. If Turing could crack the Enigma Machine I say all bets are off.
How long before TSA decides to use these powers to force travelers to open their social media in a similar manner, I wonder?
New laws in New Zealand (came into effect today) allow Customs to perform a “digital strip search” of travellers. If you don’t give them your pin code, or open phone with fingerprint, you can be fined $5000 and have your device seized.
"Hey, Siri, whose phone is this?" will disable Face ID/Touch ID
I wonder if any of the radios can pick up on police bands. Not intercept them because they’re encrypted, but just know strength and then disable the biometric and a message.
Of course, very few iPhone owners would be worried about felony issues, but maybe if you weee driving and texting and that message came up you might be quicker to stop texting.
(Note: I would doubt that the bands would be allowed a commercial device, but just spitballing for its own sake.)
I wonder if they had a lineup and walked past them all holding the iPhone? /kidding
I know you’re making a joke but I wonder how much of that could be a reality with a more systematic approach.
Let’s say there’s a busy with several phones on couches, tables, countertops, etc. Uess you can track everyone’s movement before entering you may have a hard time knowing whose phone is whose if they scramble when you bust in, even if the execution is textbook.
Instead of using a PIN/passcode cracker which may be virtually impossible if they use a complex pass phras, you may want to locate and bag every device in a way that it’s counting down the 3(?) reads before it disables Face ID.
With Toich ID it’s not hard to avoid hitting the Home Button, then you can dust it for prints on the back and most of the front to compare to the individuals you've arrested. Chances are it’s at least one thumb, but I’d they were slightly clever they’d use a different digit or really just disable it altogether.
For Face ID you can still do the fingerprint comparison to the user so long as you don’t trigger True Deprh too many times. Would a black bag or tape over the camera be enough or does the IR camera register that as a reason to lock it? Would a tactical helmet with a visor being worn by SWAT trufger Face ID or would the IR be fooled by the material? If it would still penetrate should they invest in equipment that would block IR from reading their faces?
The law, as currently written/interpreted (in the USA) says the courts (police) canNOT compel a person to reveal their alphanumeric passcode to unlock a phone.
The controversy here is why that same law does not apply to biometric passcodes. In function, TouchID and FaceID are no different than a passcode... so they should have the same protections against government forcing you to use them.
(I already knew about squeezing the iPhone buttons to disable biometric unlock... asking Siri "who's phone is this?" was new to me though!)
I hope the bastard gets worse than life. I support law enforcement gaining access to child abusers’ devices so they can put them away.
Next you will be telling us if you have nothing to hide then you dont mind the cops accessing your phone?
Didn't they have a
warrant? This wasn't some case of them stopping a random guy on the street and
looking for something to charge him with. Nor is it mass surveillance. Nor did
they ask Apple for a risky backdoor. They had grounds for search. They searched.
Where is your problem with this?
The issue isn't whether this amounted to an illegal search. Presumably the government was in compliance with the Fourth Amendment in this case and had the right to conduct a search of the iPhone.
The issue is whether the government can, in conducting that (presumably legal) search, compel a suspect to assist in the recreation of potential evidence by facilitating the decryption of contents of the iPhone. That's more a Fifth Amendment issue than a Fourth Amendment issue. The government shouldn't be allowed to compel that assistance; unfortunately it may ultimately be decided that the government is allowed to.
I don't see it as any different to being compelled to give blood if you're believed to be intoxicated while driving. I do get that we shouldn't be forced to hand over a pass code - something in our mind - but blood, finger prints, biometrics, aren't covered by the 5th. Perhaps the interpretation of the law will change but I would hope not. I don't believe that when the amendment was passed, anyone would have anticipated biometrically unlocking a phone as something to be protected.
There’s a fine line between concealing evidence and self-incrimination. The Fourth and Fifth Amendments attempt to balance that line. If you are concealing evidence because it would incriminate you I don’t think the Fifth Amendment covers that. In any even I doubt any of us here are constitutional lawyers and that this will have to be dealt with by the SCOTUS eventually. Technology has always been way out in front of the law and we here pontificating our useless and uneducated opinions about it means nothing, including my own opinions.
essentially, the the courts have so far ruled that using a fingerprint (or a face, in this case) is different from being compelled to testify and therefore does not fall under self-incrimination.
I hope the bastard gets worse than life. I support law enforcement gaining access to child abusers’ devices so they can put them away.
Next you will be telling us if you have nothing to hide then you dont mind the cops accessing your phone?
Didn't they have a
warrant? This wasn't some case of them stopping a random guy on the street and
looking for something to charge him with. Nor is it mass surveillance. Nor did
they ask Apple for a risky backdoor. They had grounds for search. They searched.
Where is your problem with this?
The issue isn't whether this amounted to an illegal search. Presumably the government was in compliance with the Fourth Amendment in this case and had the right to conduct a search of the iPhone.
The issue is whether the government can, in conducting that (presumably legal) search, compel a suspect to assist in the recreation of potential evidence by facilitating the decryption of contents of the iPhone. That's more a Fifth Amendment issue than a Fourth Amendment issue. The government shouldn't be allowed to compel that assistance; unfortunately it may ultimately be decided that the government is allowed to.
I don't see it as any different to being compelled to give blood if you're believed to be intoxicated while driving. I do get that we shouldn't be forced to hand over a pass code - something in our mind - but blood, finger prints, biometrics, aren't covered by the 5th. Perhaps the interpretation of the law will change but I would hope not. I don't believe that when the amendment was passed, anyone would have anticipated biometrically unlocking a phone as something to be protected.
I would agree that, under current act of production doctrine and to the extent it is applicable, compelling someone to use a particular finger to decrypt a smartphone wouldn't violate their Fifth Amendment rights. I also believe that courts will, for the most part, continue to find that doing so doesn't violate Fifth Amendment rights and, that, eventually the law will be settled in that regard.
I don't think that's correct however. I think the application of the act of production doctrine misconstrues what happens when something is decrypted. (I'd note that in this context the term production doesn't refer to making or creating something, it refers to turning it over. You produce a document which already exists by retrieving it and giving it to authorities, not by creating it if it doesn't already exist or by modifying what does exist.) When you decrypt a smartphone's contents you create potential evidence which didn't exist before, or you change what did exist such that it might be useful as evidence. Even without the smartphone's contents being decrypted, the government has everything which exists. It has control over the evidence which currently exists. It can read the data on that smartphone if it wants to.
The problem, for government, is that such data is gibberish and wouldn't be persuasive at trial. So while the government has the evidence which does exist, it isn't the evidence which the government wants (or isn't in the form the government wants). So, the government wants to compel the suspect (or some other party) to modify the evidence such that it might be persuasive at trial. I don't think the government has the right to compel such evidence creation (or interpretation) any more than it has the right to compel a suspect to go back and put their blood, which they might have successfully cleaned up, at a crime scene. If a suspect has gotten rid of evidence, or so jumbled it that it isn't useful to the government, that may suck from a law enforcement perspective. But it doesn't mean that the government gets to make the suspect put things back as they were before and such that the government can better make its case.
A real world analogy (to the digital evidence in this scenario) might be this: A possible criminal has incriminating records written on a piece of paper. Not wanting to leave them as such (or for other reasons), they use (or have someone else use) a cypher to rewrite those records so that they make no sense. Then they destroy the original piece of paper. With a particular key (i.e. a code word) and following a known algorithm, the records can be recreated.
If the government gets a search warrant and acquires the nonsensical version of the records, it might want them deciphered such that they might be useful as evidence. But the government couldn't compel the possible criminal to decipher those records. It also couldn't compel him to reveal the code word used to encode them. Further, it couldn't compel him to reveal that code word to another party who knew how the cypher worked and would only need the code word to recreate the records. The act of production doctrine wouldn't apply because we wouldn't be dealing with the 'production' (i.e. the turning over) of evidence; we'd be dealing with the creation of evidence.
In short, using a passcode or your finger or your face to facilitate the decryption of the contents of a smartphone isn't unlocking those contents such that the government has access to them, similar to what happens when we unlock a safe that has contents inside. Rather, it is changing those contents. It is creating information which hadn't previously existed. The flaw in the legal reasoning is regarding decrypting as unlocking existing contents. Once that fundamental error has been made then, yeah, existing doctrine leads fairly easily to compelled decryption (using a specified finger or your face) being allowed.
There’s a fine line between concealing evidence and self-incrimination. The Fourth and Fifth Amendments attempt to balance that line. If you are concealing evidence because it would incriminate you I don’t think the Fifth Amendment covers that. In any even I doubt any of us here are constitutional lawyers and that this will have to be dealt with by the SCOTUS eventually. Technology has always been way out in front of the law and we here pontificating our useless and uneducated opinions about it means nothing, including my own opinions.
essentially, the the courts have so far ruled that using a fingerprint (or a face, in this case) is different from being compelled to testify and therefore does not fall under self-incrimination.
Courts have, for the most part, ruled that compelling the use of a fingerprint is okay while compelling the use of a passcode isn't. But courts haven't been completely consistent in those regards. The federal district court for the Northern District of California, e.g., ruled earlier this year that a suspect could be compelled to use a passcode to decrypt several devices.
There are still some open questions when it comes to the application of the act of production doctrine. But the two key prongs are (1) is the compelled act testimonial and (2) is that which it testifies to a forgone conclusion?
Compelling a suspect to place a particular finger on a fingerprint sensor wouldn't, for the most part, mean requiring them to (implicitly) testify. So the forgone conclusion prong wouldn't matter, the act of production doctrine would allow them to be compelled to do that. Compelling them to use a passcode to decrypt a smartphone, however, would mean requiring them to implicitly testify. They would be using contents of their mind and implicitly testifying that they know how to decrypt the smartphone. The question would then become, is that fact a foregone conclusion? Can the government independently demonstrate that they know how to decrypt the smartphone?
I believe that compelling a suspect to decrypt a smartphone using their fingers, but without specifying what finger they should use, would also be testimonial. They would be using the contents of their mind to implicitly testify to something - i.e., that they know which of their fingers decrypts the smartphone. So, under existing act of production doctrine (and assuming it's applicable, which I don't think it should be), the government might be able to compel a suspect to place a particular finger on a fingerprint sensor. And then, if that doesn't work, it would be able to compel them to place a different finger on the sensor. But it shouldn't, under existing doctrine, be able to compel them to use whatever finger will work (leaving the suspect to decide which finger to use first). The latter would involve implicit testimony, revealing (possibly incriminating) contents of the suspect's mind.
The difference between compelling use of a fingerprint or other biometrics and forcing the suspect to give up a password is pretty clear in my mind. The former are all physical things; the latter is seeking the content of your mind. If I (as a cop) am allowed to ink your finger and capture your fingerprint, of course I'm also allowed to (try to) force you to look at your phone.
I'm sure serious criminals (e.g., professional drug dealers) get this and don't use biometrics to lock their devices.
Also, don't forget that cops are allowed to request lots of things that they aren't allowed to compel. The average person, if told by a cop with a search warrant, to unlock their phone would probably do so (or at least have a non-zero probability of doing so)--even if they regret it lately.
The affidavit in support of that warrant asserts that, pursuant to a prior search warrant, the suspect was required to use his face to decrypt an iPhone X found on his person.
And this is why no phone of mine will ever have Touch ID, Face ID, or any other bio-metric feature enabled to unlock my phone. Long, complicated pass codes, now and forever.
Comments
Also, there’s the bit about speech and self-incrimination. The iPhone doesn’t contain information like a safe might contain documents and other evidence of crime. It contains a bunch of random looking data, which is of course not random but instead is encrypted. The only way to unencrypt that data is to provide the encryption key, part of which is the user’s password, Touch ID data or Face ID data. That information is used to turn useless encrypted streams into criminal evidence and it seems to me there might be a case that compelling a suspect to assist is forcing him/her to interpret that data, which might fall under compelled speech or self-incrimination. Ergo, there’s a good chance it may be found to be illegal if/when challenged.
Of course, very few iPhone owners would be worried about felony issues, but maybe if you weee driving and texting and that message came up you might be quicker to stop texting.
(Note: I would doubt that the bands would be allowed a commercial device, but just spitballing for its own sake.)
Let’s say there’s a busy with several phones on couches, tables, countertops, etc. Uess you can track everyone’s movement before entering you may have a hard time knowing whose phone is whose if they scramble when you bust in, even if the execution is textbook.
Instead of using a PIN/passcode cracker which may be virtually impossible if they use a complex pass phras, you may want to locate and bag every device in a way that it’s counting down the 3(?) reads before it disables Face ID.
With Toich ID it’s not hard to avoid hitting the Home Button, then you can dust it for prints on the back and most of the front to compare to the individuals you've arrested. Chances are it’s at least one thumb, but I’d they were slightly clever they’d use a different digit or really just disable it altogether.
For Face ID you can still do the fingerprint comparison to the user so long as you don’t trigger True Deprh too many times. Would a black bag or tape over the camera be enough or does the IR camera register that as a reason to lock it? Would a tactical helmet with a visor being worn by SWAT trufger Face ID or would the IR be fooled by the material? If it would still penetrate should they invest in equipment that would block IR from reading their faces?
The controversy here is why that same law does not apply to biometric passcodes.
In function, TouchID and FaceID are no different than a passcode... so they should have the same protections against government forcing you to use them.
(I already knew about squeezing the iPhone buttons to disable biometric unlock... asking Siri "who's phone is this?" was new to me though!)
essentially, the the courts have so far ruled that using a fingerprint (or a face, in this case) is different from being compelled to testify and therefore does not fall under self-incrimination.
I don't think that's correct however. I think the application of the act of production doctrine misconstrues what happens when something is decrypted. (I'd note that in this context the term production doesn't refer to making or creating something, it refers to turning it over. You produce a document which already exists by retrieving it and giving it to authorities, not by creating it if it doesn't already exist or by modifying what does exist.) When you decrypt a smartphone's contents you create potential evidence which didn't exist before, or you change what did exist such that it might be useful as evidence. Even without the smartphone's contents being decrypted, the government has everything which exists. It has control over the evidence which currently exists. It can read the data on that smartphone if it wants to.
The problem, for government, is that such data is gibberish and wouldn't be persuasive at trial. So while the government has the evidence which does exist, it isn't the evidence which the government wants (or isn't in the form the government wants). So, the government wants to compel the suspect (or some other party) to modify the evidence such that it might be persuasive at trial. I don't think the government has the right to compel such evidence creation (or interpretation) any more than it has the right to compel a suspect to go back and put their blood, which they might have successfully cleaned up, at a crime scene. If a suspect has gotten rid of evidence, or so jumbled it that it isn't useful to the government, that may suck from a law enforcement perspective. But it doesn't mean that the government gets to make the suspect put things back as they were before and such that the government can better make its case.
A real world analogy (to the digital evidence in this scenario) might be this: A possible criminal has incriminating records written on a piece of paper. Not wanting to leave them as such (or for other reasons), they use (or have someone else use) a cypher to rewrite those records so that they make no sense. Then they destroy the original piece of paper. With a particular key (i.e. a code word) and following a known algorithm, the records can be recreated.
If the government gets a search warrant and acquires the nonsensical version of the records, it might want them deciphered such that they might be useful as evidence. But the government couldn't compel the possible criminal to decipher those records. It also couldn't compel him to reveal the code word used to encode them. Further, it couldn't compel him to reveal that code word to another party who knew how the cypher worked and would only need the code word to recreate the records. The act of production doctrine wouldn't apply because we wouldn't be dealing with the 'production' (i.e. the turning over) of evidence; we'd be dealing with the creation of evidence.
In short, using a passcode or your finger or your face to facilitate the decryption of the contents of a smartphone isn't unlocking those contents such that the government has access to them, similar to what happens when we unlock a safe that has contents inside. Rather, it is changing those contents. It is creating information which hadn't previously existed. The flaw in the legal reasoning is regarding decrypting as unlocking existing contents. Once that fundamental error has been made then, yeah, existing doctrine leads fairly easily to compelled decryption (using a specified finger or your face) being allowed.
Courts have, for the most part, ruled that compelling the use of a fingerprint is okay while compelling the use of a passcode isn't. But courts haven't been completely consistent in those regards. The federal district court for the Northern District of California, e.g., ruled earlier this year that a suspect could be compelled to use a passcode to decrypt several devices.
There are still some open questions when it comes to the application of the act of production doctrine. But the two key prongs are (1) is the compelled act testimonial and (2) is that which it testifies to a forgone conclusion?
Compelling a suspect to place a particular finger on a fingerprint sensor wouldn't, for the most part, mean requiring them to (implicitly) testify. So the forgone conclusion prong wouldn't matter, the act of production doctrine would allow them to be compelled to do that. Compelling them to use a passcode to decrypt a smartphone, however, would mean requiring them to implicitly testify. They would be using contents of their mind and implicitly testifying that they know how to decrypt the smartphone. The question would then become, is that fact a foregone conclusion? Can the government independently demonstrate that they know how to decrypt the smartphone?
I believe that compelling a suspect to decrypt a smartphone using their fingers, but without specifying what finger they should use, would also be testimonial. They would be using the contents of their mind to implicitly testify to something - i.e., that they know which of their fingers decrypts the smartphone. So, under existing act of production doctrine (and assuming it's applicable, which I don't think it should be), the government might be able to compel a suspect to place a particular finger on a fingerprint sensor. And then, if that doesn't work, it would be able to compel them to place a different finger on the sensor. But it shouldn't, under existing doctrine, be able to compel them to use whatever finger will work (leaving the suspect to decide which finger to use first). The latter would involve implicit testimony, revealing (possibly incriminating) contents of the suspect's mind.
I'm sure serious criminals (e.g., professional drug dealers) get this and don't use biometrics to lock their devices.
Also, don't forget that cops are allowed to request lots of things that they aren't allowed to compel. The average person, if told by a cop with a search warrant, to unlock their phone would probably do so (or at least have a non-zero probability of doing so)--even if they regret it lately.
The affidavit in support of that warrant asserts that, pursuant to a prior search warrant, the suspect was required to use his face to decrypt an iPhone X found on his person.