On one hand I can see the "inherently testimonial" argument on this.
On the other hand, how is a warrant to unlock a device via Face ID or Touch ID different than a warrant to allow police into your house to search for something?
Because it takes no action on the "suspects" part to gain access to the house and search it. The idea behind the law is that you cannot compel an individual to take part in their own incrimination. This is why entrapment is illegal as well as coercing a suspect in any way.
A warrant gives authority to gain access and search. It does not void a "suspects" 5th Admendmant right, which is the right to stand aside and do nothing and remain silent.
Further, if you have a safe in your house and the police have a warrant to search your house, they can’t force you to open the safe or give them the combination.
I think a safe with a combination is the equivalent of a phone with a passcode, fingerprint or face required to open.
On one hand I can see the "inherently testimonial" argument on this.
On the other hand, how is a warrant to unlock a device via Face ID or Touch ID different than a warrant to allow police into your house to search for something?
Because it takes no action on the "suspects" part to gain access to the house and search it. The idea behind the law is that you cannot compel an individual to take part in their own incrimination. This is why entrapment is illegal as well as coercing a suspect in any way.
A warrant gives authority to gain access and search. It does not void a "suspects" 5th Admendmant right, which is the right to stand aside and do nothing and remain silent.
Further, if you have a safe in your house and the police have a warrant to search your house, they can’t force you to open the safe or give them the combination.
I think a safe with a combination is the equivalent of a phone with a passcode, fingerprint or face required to open.
But they can certainly call in a locksmith to drill that safe open without the owner’s cooperation. And like cracking a safe, that’s why law enforcement is buying Israeli technology to “crack” phones and other mobile devices. I for one am grateful those technologies exist so law enforcement can carry out a legal search warrant without action from the owner of the device. This is one case where the black-hats are providing a service to the good guys.
On one hand I can see the "inherently testimonial" argument on this.
On the other hand, how is a warrant to unlock a device via Face ID or Touch ID different than a warrant to allow police into your house to search for something?
Because it takes no action on the "suspects" part to gain access to the house and search it. The idea behind the law is that you cannot compel an individual to take part in their own incrimination. This is why entrapment is illegal as well as coercing a suspect in any way.
A warrant gives authority to gain access and search. It does not void a "suspects" 5th Admendmant right, which is the right to stand aside and do nothing and remain silent.
Further, if you have a safe in your house and the police have a warrant to search your house, they can’t force you to open the safe or give them the combination.
I think a safe with a combination is the equivalent of a phone with a passcode, fingerprint or face required to open.
But they can certainly call in a locksmith to drill that safe open without the owner’s cooperation. And like cracking a safe, that’s why law enforcement is buying Israeli technology to “crack” phones and other mobile devices. I for one am grateful those technologies exist so law enforcement can carry out a legal search warrant without action from the owner of the device. This is one case where the black-hats are providing a service to the good guys.
How many cases have resulted in the saving of children from boogeymen? What sort of evidence has been found on device and not in the cloud; etc?
"Because it amounts to an assertion of fact that the individual has the ability to unlock the device," she said, "which in turn makes it more like that the individual locked the device and put the material sought by the warrant on the device."
The ruling by this judge is correct and law-abiding, and anyone who thinks otherwise should take their first-ever actual look at the relevant Constitution and related documents. It is all there very plainly: people in America have a right to be secure in the person and papers (the latter of which includes both physical documents and electronic documents), and they must not be forced to incriminate themselves -- and being forced to unlock a device through biometrics (at least) is very clearly forcing exactly that. I'm aware this creates difficulties for law enforcement under certain circumstances, but the Founders correctly reasoned that not making this an ironclad part of the Constitution would invite torture, and they were exactly right. Nothing in the Constitution or Bill of Rights assures law enforcement that they will have access to any tool they might possibly imagine they need to do their job, and indeed directly puts obstacles in the path of law enforcement out of an abundance of caution for the rights of citizens. The avoidance of tyranny and tyrannical tactics such as we're seeing now is very much the point of the document.
On one hand I can see the "inherently testimonial" argument on this.
On the other hand, how is a warrant to unlock a device via Face ID or Touch ID different than a warrant to allow police into your house to search for something?
A phone has a great deal of private communication that would not be recorded in any fashion in the old fashion legal searches of homes. We use a phone to store intimate details that we would have never considered placing in a file cabinet or even a safe. We just aren’t wired to do that. With regard to storage of personal info, smartphones are something different than existed previously, with no practical analog equivalent. Police are looking to open the phone of a suspect to go on a fishing expedition.
Every major case of attempted phone decryption that has garnered nationwide attention is one where the major crime has already been committed and the suspect is usually dead. They are attempting to use these cases to somehow make standard the ability to go on their fishing trip through any small-time suspect’s personal data.
Get arrested for DUI? Now the police get to read all your emails and texts, browse your contacts, set up endless webs of associates that would entangle no end of completely innocent people after taking the contact connects a couple of levels deep. In addition to the DUI, they trip over evidence of multiple of small-time crimes such as evidence of torrent sites or access to an illegal movie-viewing site. Your racially insensitive joke you messaged one of your old friends offends the Jury. Now, instead of getting your license suspended for the DUI, you are going to prison for 10 years for demonstrating a pattern of repeated crimes, however small they would be on their own. All of the contacts on your phone are now on the police’s radar. If a person shows up on the contact list for two or three of these “repeat-offenders,” than that person gets investigated due to suspect likelihood of similar illegal behavior.
...when the original charge is a DUI. Serious, yes. But the other aspects of the case should have been unrelated.
They want gun control as if that would change anything and the 2nd Amendment is blocking those efforts.
The 2nd Amendment supports gun control--gun control far beyond what we have in the U.S.A. Its text is but one sentence in length: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." That was written roughly 150 years before assault rifles and high capacity magazines appeared.
Gun control would change a lot, as evidenced by every other developed country that doesn't have the problems we do. (Of course the extensive racism in the U.S.A. doesn't help either). But 60% of gun-related deaths in the U.S.A. were suicides, with the vast majority white males.
Don't let the NRA or right-wing talk radio pervert the meaning of the 2nd Amendment.
The purpose of allowing the average citizen to bear arms is protection against a tyrannical government, such as the country the Founders split from - Britain - the same country that is now banning knives. The Founder realized that any government that has absolute power over the citizens is doomed to corruption and oppression of those citizens. The people have the right to bear arms, not just the militia. The militia is voluntary, not conscripted. The militia was formed of the citizens, all of which carried that constitutional right. Without the citizens being armed and familiar with the arms, the militia could not have existed. Now, just because we have a more organized volunteer military, we don’t get to remove the constitutional right for all citizens to bear arms.
Don’t let the “socialists” or left-wing talk radio pervert the meaning of the 2nd Amendment.
They want gun control as if that would change anything and the 2nd Amendment is blocking those efforts.
The 2nd Amendment supports gun control--gun control far beyond what we have in the U.S.A. Its text is but one sentence in length: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." That was written roughly 150 years before assault rifles and high capacity magazines appeared.
The phase "well regulated" plainly applies to "Militia" here. The "right" applies to the people ("the right of the people") (and, yes, this has been ruled to be an individual right not collective).
This amendment could be read as follows:
"Since a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Or, put another way:
"The right of the the people to keep and bear arms shall not be infringed, because a well regulated Militia is necessary to the security of a free state."
Further just because it implies that people would be part of a militia, this is not stated as a requirement "to keep and bear arms". It simply says since since we think a (well regulated) militia is necessary to the security of a free state, we should not infringe on people's right to keep and bear arms.
They want gun control as if that would change anything and the 2nd Amendment is blocking those efforts.
The 2nd Amendment supports gun control--gun control far beyond what we have in the U.S.A. Its text is but one sentence in length: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." That was written roughly 150 years before assault rifles and high capacity magazines appeared.
The phase "well regulated" plainly applies to "Militia" here. The "right" applies to the people ("the right of the people") (and, yes, this has been ruled to be an individual right not collective).
This amendment could be read as follows:
"Since a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Or, put another way:
"The right of the the people to keep and bear arms shall not be infringed, because a well regulated Militia is necessary to the security of a free state."
Further just because it implies that people would be part of a militia, this is not stated as a requirement "to keep and bear arms". It simply says since since we think a (well regulated) militia is necessary to the security of a free state, we should not infringe on people's right to keep and bear arms.
The term “well regulated” today holds a different connotation than when originally written. At the time the Second Amendment was passed the term meant “calibrated correctly” or “functioning as expected”, not supervised or controlled by authorities. This difference in understanding of the actual definition illustrates the widespread influence of statist and collectivist beliefs in our country today.
The ruling by this judge is correct and law-abiding, and anyone who thinks otherwise should take their first-ever actual look at the relevant Constitution and related documents. It is all there very plainly: people in America have a right to be secure in the person and papers (the latter of which includes both physical documents and electronic documents), and they must not be forced to incriminate themselves -- and being forced to unlock a device through biometrics (at least) is very clearly forcing exactly that. I'm aware this creates difficulties for law enforcement under certain circumstances, but the Founders correctly reasoned that not making this an ironclad part of the Constitution would invite torture, and they were exactly right. Nothing in the Constitution or Bill of Rights assures law enforcement that they will have access to any tool they might possibly imagine they need to do their job, and indeed directly puts obstacles in the path of law enforcement out of an abundance of caution for the rights of citizens. The avoidance of tyranny and tyrannical tactics such as we're seeing now is very much the point of the document.
LOL. Holding a phone up to your face to unlock it is "torture." On top of that you are conflating the 4th Amendment which regulates searches and seizures, with the 5th Amendment's protection against compelled self-incrimination.
As you take your own suggestion to heart and actually study Constitutional law, you'll start to note some problems with your theories, such as the Supreme Court's consistent interpretation that the 5th Amendment prevents the government from compelling you to TESTIFY against yourself. There is no protection against being forced to give up evidence against yourself or even to provide verbal statements that clearly incriminate oneself. That's why the Courts have ruled that you have to give up the most well known biometric- your fingerprints, and that other little biometric known as your DNA, or give a handwriting sample, or a voice sample, etc. That's why you are forced to give up your name, which incriminates thousands of people every day in America because the police then can find out that they are wanted for crimes, etc. Hopefully, this has piqued your interest to learn more about our wonderful Constitution.
They want gun control as if that would change anything and the 2nd Amendment is blocking those efforts.
The 2nd Amendment supports gun control--gun control far beyond what we have in the U.S.A. Its text is but one sentence in length: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." That was written roughly 150 years before assault rifles and high capacity magazines appeared.
Gun control would change a lot, as evidenced by every other developed country that doesn't have the problems we do. (Of course the extensive racism in the U.S.A. doesn't help either). But 60% of gun-related deaths in the U.S.A. were suicides, with the vast majority white males.
Don't let the NRA or right-wing talk radio pervert the meaning of the 2nd Amendment.
"Regulated" does not mean regulation, and it certainly does not imply "gun control". "Gun control" was never a thing until the 20th century; you're simply changing the meaning of phrased to fit a modern, and obviously biased, perspective.
On one hand I can see the "inherently testimonial" argument on this.
On the other hand, how is a warrant to unlock a device via Face ID or Touch ID different than a warrant to allow police into your house to search for something?
If we're drawing an equivalency between a personal property device and your house then the Third Amendment would seemingly prevent the government from forcing phone manufacturers to install a government controlled backdoor or spyware into your phone. It's only a matter of time before this happens.
Regarding the "well related militia" part of the 2nd Amendment, that's been argued unsuccessfully for decades to no avail. It always comes down to subjective interpretation. There's an almost universal fallacy that the US Constitution is some sort of magical, mystical, and word-of-God perfect document that was handed down from above to perfectly guide the US citizenry, its laws, and politics. A similar fallacy exists around the Supreme Court. The US Constitution and Supreme Court are artifacts of an imperfect mankind and are subject to all of the same fallacies, biases, political influences, mistakes, and selective interpretation that affect all humans and their judgement within the context and struggles of contemporary living. Trying to abide by the precedents set forth in an archaic document being interpreted by imperfect authorities is arguably better than following a purely random path, bending to the whims of the day, or allowing the machinations of incompetent leaders to run open-loop.
They want gun control as if that would change anything and the 2nd Amendment is blocking those efforts.
The 2nd Amendment supports gun control--gun control far beyond what we have in the U.S.A. Its text is but one sentence in length: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." That was written roughly 150 years before assault rifles and high capacity magazines appeared.
The phase "well regulated" plainly applies to "Militia" here. The "right" applies to the people ("the right of the people") (and, yes, this has been ruled to be an individual right not collective).
This amendment could be read as follows:
"Since a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Or, put another way:
"The right of the the people to keep and bear arms shall not be infringed, because a well regulated Militia is necessary to the security of a free state."
Further just because it implies that people would be part of a militia, this is not stated as a requirement "to keep and bear arms". It simply says since since we think a (well regulated) militia is necessary to the security of a free state, we should not infringe on people's right to keep and bear arms.
The term “well regulated” today holds a different connotation than when originally written. At the time the Second Amendment was passed the term meant “calibrated correctly” or “functioning as expected”, not supervised or controlled by authorities. This difference in understanding of the actual definition illustrates the widespread influence of statist and collectivist beliefs in our country today.
On one hand I can see the "inherently testimonial" argument on this.
On the other hand, how is a warrant to unlock a device via Face ID or Touch ID different than a warrant to allow police into your house to search for something?
A phone has a great deal of private communication that would not be recorded in any fashion in the old fashion legal searches of homes. We use a phone to store intimate details that we would have never considered placing in a file cabinet or even a safe. We just aren’t wired to do that. With regard to storage of personal info, smartphones are something different than existed previously, with no practical analog equivalent. Police are looking to open the phone of a suspect to go on a fishing expedition.
Every major case of attempted phone decryption that has garnered nationwide attention is one where the major crime has already been committed and the suspect is usually dead. They are attempting to use these cases to somehow make standard the ability to go on their fishing trip through any small-time suspect’s personal data.
Get arrested for DUI? Now the police get to read all your emails and texts, browse your contacts, set up endless webs of associates that would entangle no end of completely innocent people after taking the contact connects a couple of levels deep. In addition to the DUI, they trip over evidence of multiple of small-time crimes such as evidence of torrent sites or access to an illegal movie-viewing site. Your racially insensitive joke you messaged one of your old friends offends the Jury. Now, instead of getting your license suspended for the DUI, you are going to prison for 10 years for demonstrating a pattern of repeated crimes, however small they would be on their own. All of the contacts on your phone are now on the police’s radar. If a person shows up on the contact list for two or three of these “repeat-offenders,” than that person gets investigated due to suspect likelihood of similar illegal behavior.
...when the original charge is a DUI. Serious, yes. But the other aspects of the case should have been unrelated.
The problem with this argument is that it implies privacy rights depend on how much information can be uncovered by a search, and you have not just gone down the slippery slope, you've fallen all the way to the bottom. If I have the same amount of information stored in my desk that I do on my iPhone, does that mean the police should not be allowed to search my desk if they have probable cause and a proper warrant? The question of evidence of additional crimes being uncovered during the execution of a search warrant obtained for an unrelated crime has come up many times, and the general ruling is that it is admissible. The mere fact that someone is in your contacts list does not give the police the right to search that person's property if there is no other evidence. Likewise, prejudicial texts/emails, etc cannot be presented as evidence unless directly related to the crime.
@dewme makes a very good and salient points in his post above about interpretation of The Constitution. There are differing approaches - one can take a literalist approach, the intent approach or an approach that tries to apply The Constitution to our society as it currently is. Very few people consistently apply any one of these approaches. One thing that is clear, however, is that the original framers were not blind to their own limitations and fallibilities, and they clearly recognized the need for the constitution to be adapted and evolve as society evolves. Society in 2019 is barely comparable to society in the 18th century and expecting a 250 year old document to apply without some adaptation is foolish.
I don’t have a particular point to add to this discussion. However I want to congratulate you all, the moderators, and AI for having just about the only comment section on the internet that doesn’t make me want to throw my phone through a wall. I learned some things that strengthened what I already believed, but also some things that made me question my beliefs.
Well even if the courts can't compel a person's biometrics (face, finger, eyes, etc.) to be used IN-PERSON to unlock a device, I'm sure that doesn't mean that the police can't use simulated biometrics to unlock it, assuming they have a copy of your fingerprint or photos of your face, which aren't hard to get. E.g., if the biometrics being used is Face ID, then the police can build a physical face. If the police have your fingerprint, they can build a fake finger. Right now this costs thousands of dollars but the price should come down as technology improves.
But don't worry, all California court decisions get overturned by the US Supreme Court. It certainly makes sense that the Fifth Amendment protects the contents of your mind but it probably doesn't protect the content of your biometrics.
P.S. I do live in a country with a constitution and that constitution has a similar phrase to the Fifth Amendment, so the issue is relevant to me. I look forward to seeing how the US works this out.
We also have the 4th amendment, which protects a person’s papers, and its not a hard stretch to consider a person’s electronic record as their “papers”.
Probable cause and searching a device to find probable cause are two entirely different things. Aren’t their enough legitimate ways for law enforcement to do their job? Hard evidence, phone records, bank records, surveillance, witness testimony? It is a controversial topic but I think there is enough ‘evidence’ to not give law enforcement a blank check of trust.
I think many missed the point on this case, what appears to have happen is law enforcement have now over played their hand yet again. Police are now claiming they need access to the device i.e. They do not have a case without having the information on the device. Thus law enforcement wants the person to self incriminate. They judge is now saying that of law enforcement needs the information on the device they do not have much of a case.
On one hand I can see the "inherently testimonial" argument on this.
On the other hand, how is a warrant to unlock a device via Face ID or Touch ID different than a warrant to allow police into your house to search for something?
I completely agree. Like what's the difference between a warrant to physically search your house and a warrant to search your phone? they are both your property, and may contain crucial evidence against you. I hope the Supreme Court can shed some light on this.
Comments
I think a safe with a combination is the equivalent of a phone with a passcode, fingerprint or face required to open.
Every major case of attempted phone decryption that has garnered nationwide attention is one where the major crime has already been committed and the suspect is usually dead. They are attempting to use these cases to somehow make standard the ability to go on their fishing trip through any small-time suspect’s personal data.
Get arrested for DUI? Now the police get to read all your emails and texts, browse your contacts, set up endless webs of associates that would entangle no end of completely innocent people after taking the contact connects a couple of levels deep. In addition to the DUI, they trip over evidence of multiple of small-time crimes such as evidence of torrent sites or access to an illegal movie-viewing site. Your racially insensitive joke you messaged one of your old friends offends the Jury. Now, instead of getting your license suspended for the DUI, you are going to prison for 10 years for demonstrating a pattern of repeated crimes, however small they would be on their own. All of the contacts on your phone are now on the police’s radar. If a person shows up on the contact list for two or three of these “repeat-offenders,” than that person gets investigated due to suspect likelihood of similar illegal behavior.
...when the original charge is a DUI. Serious, yes. But the other aspects of the case should have been unrelated.
Don’t let the “socialists” or left-wing talk radio pervert the meaning of the 2nd Amendment.
https://constitution.org/cons/wellregu.htm
As you take your own suggestion to heart and actually study Constitutional law, you'll start to note some problems with your theories, such as the Supreme Court's consistent interpretation that the 5th Amendment prevents the government from compelling you to TESTIFY against yourself. There is no protection against being forced to give up evidence against yourself or even to provide verbal statements that clearly incriminate oneself. That's why the Courts have ruled that you have to give up the most well known biometric- your fingerprints, and that other little biometric known as your DNA, or give a handwriting sample, or a voice sample, etc. That's why you are forced to give up your name, which incriminates thousands of people every day in America because the police then can find out that they are wanted for crimes, etc. Hopefully, this has piqued your interest to learn more about our wonderful Constitution.
Regarding the "well related militia" part of the 2nd Amendment, that's been argued unsuccessfully for decades to no avail. It always comes down to subjective interpretation. There's an almost universal fallacy that the US Constitution is some sort of magical, mystical, and word-of-God perfect document that was handed down from above to perfectly guide the US citizenry, its laws, and politics. A similar fallacy exists around the Supreme Court. The US Constitution and Supreme Court are artifacts of an imperfect mankind and are subject to all of the same fallacies, biases, political influences, mistakes, and selective interpretation that affect all humans and their judgement within the context and struggles of contemporary living. Trying to abide by the precedents set forth in an archaic document being interpreted by imperfect authorities is arguably better than following a purely random path, bending to the whims of the day, or allowing the machinations of incompetent leaders to run open-loop.
The problem with this argument is that it implies privacy rights depend on how much information can be uncovered by a search, and you have not just gone down the slippery slope, you've fallen all the way to the bottom. If I have the same amount of information stored in my desk that I do on my iPhone, does that mean the police should not be allowed to search my desk if they have probable cause and a proper warrant? The question of evidence of additional crimes being uncovered during the execution of a search warrant obtained for an unrelated crime has come up many times, and the general ruling is that it is admissible. The mere fact that someone is in your contacts list does not give the police the right to search that person's property if there is no other evidence. Likewise, prejudicial texts/emails, etc cannot be presented as evidence unless directly related to the crime.
@dewme makes a very good and salient points in his post above about interpretation of The Constitution. There are differing approaches - one can take a literalist approach, the intent approach or an approach that tries to apply The Constitution to our society as it currently is. Very few people consistently apply any one of these approaches. One thing that is clear, however, is that the original framers were not blind to their own limitations and fallibilities, and they clearly recognized the need for the constitution to be adapted and evolve as society evolves. Society in 2019 is barely comparable to society in the 18th century and expecting a 250 year old document to apply without some adaptation is foolish.
I learned some things that strengthened what I already believed, but also some things that made me question my beliefs.
This is the internet done right.