Forcing suspects to reveal phone passwords is unconstitutional, court says

http://arstechnica.com/tech-policy/2015/09/forcing-suspects-to-reveal-phone-passwords-is-unconstitutional-court-says/

by LeoNatan25 • 11 years ago

284 185 11 years ago

vectorEQ• 11 years ago

bet is not unconstitutional to force someone to give up pw of PC though? :/

ltnately• 11 years ago

From my limited understanding, the difference is the government having a reasonable level of certainty that the device in question contains the evidence they're looking for.

The analogy I would use is a locked closet full of file boxes. If the government is certain that the files relating to a specific crime are in the closet, then you can be compelled to assist them in opening your closet or face an obstruction of justice charge. However if the police suspect you of a crime and suspect that you're the type of person who would keep the evidence in your locked closet that is not enough compel you to open the closet so the police can check up on their hunch.

In this case, I read it as the men are suspected of insider trading and the government believes that they would have used their cell phones to communicate about the deal and the phones contain evidence of such. There is no actual evidence that the phones were used and so they're not obstructing the police in obtaining evidence the police know is there, but rather preventing the police from poking around to see if the evidence exists at all.

beeboop3• 11 years ago

I find it odd that they aren't just able to get the data from the carriers. The only reason it'd be on the device but not the carrier/Facebook/Twitter/etc servers is if they encrypted the messages, but they would probably mention this if it were the case.

draugadrotten• 11 years ago

The police will stop forcing suspects and will start inducing cooperation.

ck2• 11 years ago

So is Stingray and what the TSA does to you at the airport but I guess we are never going to address that.

ctdonath3• 11 years ago

Here's hoping we're making progress toward ending TSA's fishing expedition. Given the concerns about mass murder being preventable via a security check, at least establishing that TSA's job is ONLY to watch for explosives et al, and may not act on discovery of other harmless (to the flight & passengers) contraband.

zipfle• 11 years ago

The guy quoted at the end seems to think it's the passcode itself that would be incriminating, rather than the contents of the phone. Weird. I've seen a theory that compelling someone to disclose a password can be incriminating because it is the same as asking them to admit that they stored the data in the first place, and obviously there's a case to be made that compelling disclosure of the data on the phone could be self incriminating, but the idea that the password would be something like yesiinsidertraded4 is new to me.

Edit: I missed the part where he's a former federal prosecutor. Mystery solved.

Ensorceled• 11 years ago

"If we disbarred the defence attorney, then they would't have client/lawyer privilege"

FireBeyond• 11 years ago

Even then, that's not retroactive. It's your conversations that are privileged, not you. Removing you as the person's attorney doesn't make the conversations you had as their attorney not subject to privilege.

avar• 11 years ago

This opens up the possibility for an interesting defense, what if I make my password contain the coordinates of those illegal drugs I buried?

Vexs• 11 years ago

Well, that was already covered under "no forced self-incrimination" AFAIK.

monochromatic2• 11 years ago

I don't know enough about this issue to have a real opinion. But I know that Orin Kerr is a smart guy who I usually agree with, so I'm inclined to give his analysis some weight.

Lawtonfogle8• 11 years ago

The location of the body isn't the evidence, it is the body found there that is the evidence. This is why forcing someone to tell the location of the body and holding them in jail until they do is perfectly fine. Except that would be unconstitutional.

tormeh3• 11 years ago

The massive difference being that you might not have buried the body at all, but that there is definitely your phone.

ikeboy2• 11 years ago

Do you have any passwords that would be embarrassing to you if they came out? Can you imagine someone that breaks the law might have an encryption password that was incriminating?

15155• 11 years ago

That's actually an interesting thought:

If my password is "iKilledColonelMustardWithACandlestick" - and it's actually an incriminating fact, how does that factor into potentially self-incriminatory discovery?

Lawtonfogle8• 11 years ago

What if it was for a very minor crime? Say you stole a quarter from a friend's home. Still a crime, no?

CrossWired2• 11 years ago

He has also revised his opinion on the matter earlier today:

https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

MengerSponge• 11 years ago

This seems reasonable. Anybody want to play internet lawyer to explain why you can't/shouldn't be compelled to unlock a fingerprint protected device?

bendykstra• 11 years ago

After Riley v California (2014), a warrant is required before the search of a mobile device. Therefore, in a scenario where you are asked to unlock your device, the only question is whether you are required to cooperate by giving your password or offering your finger. In the case of a password, the answer appears to be no, due to the privilege against self-incrimination. In the case of fingerprints, there is no such right. You are merely identifying yourself to the phone and your identity cannot be construed as incriminating testimony.

http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf

http://scholarlycommons.law.northwestern.edu/cgi/viewcontent...

ctdonath3• 11 years ago

Not that I do or don't agree... My current operating theory is that investigators may use a "rag doll" view: they can't compel you to admit or divulge anything, but they can make use of your limp uncooperative (but not resisting per se) body. They may note your biometrics (eye color, iris pattern, hair samples, fingerprints, etc), doing so non-invasively (no blood samples unless you're already bleeding); as such they could take your hand and press your finger onto a fingerprint reader, just as they are allowed to gather prints for a background check without a warrant (AFAIK). Corrections welcome.

rhino369• 11 years ago

You are essentially correct. The fifth amendment says you can't be compelled to "to be a witness against himself." Courts have found that bio-metrics aren't witnessing, it's just evidence they are collecting about you.

ams6110• 11 years ago

The analogy I've often heard is that it's like a safe. Presented with the proper warrants, you can't refuse to open a safe on the basis of the 5th ammendment.

tormeh3• 11 years ago

Yeah, that would be the closest thing I can think of in the real world.

derekp7• 11 years ago

But what if the safe had documents in it which was written in a language that only you know? Is there any circumstances where you could be compelled to translate them?

galaxyLogic2• 11 years ago

I find it interesting. It is crime to do crime is a tautology. But isn't "It is crime to try to hide the fact that you are doing crime" bit of the same? If you're doing crime OF COURSE you are trying to hide the fact that you are are doing crime. Does it make it more or less of a crime, since in practice every criminal is already doing that? Except terrorists. They want everybody to know they are doing it. Does that make them less criminal then?

norea-armozel• 11 years ago

I'm glad they've narrowed the conditions to compel suspects of revealing passwords. It just seems that it was too wide open for just any minor hint of suspicion was enough (sans warrant) to do these fishing expeditions. If they got reasonable suspicion then they need to get a friggin' warrant. I just don't get why law enforcement is getting so sloppy these days.

talmand• 11 years ago

I think it's the result of the easy-going attitude of such things in the past in the effort to appear tough on crime. When they were given such lenient rules of how they approached crimes and suspects. Rules that are now being slowly taken away from them, as unconstitutional, but are still trying to operate as if they are still there.

abakker• 11 years ago

All we really need is a real passcode, and then a second special passcode that wipes the phone instantly if typed.

so, my normal code might be 123456, but if someone asks what my code is and I say 345678, then the phone does a data wipe that isn't obvious from the outside, and just deletes all credentials, cookies, history, documents, etc.

Is this workable?

monochromatic2• 11 years ago

And then they get you for destruction of evidence?

roosterjm2k2• 11 years ago

Wouldn't they have to prove that there was evidence pertaining specifically to the current case to get you for destroying evidence?

grecy• 11 years ago

interestingly, I didn't destroy any evidence. I just verbally said something and they took action which destroyed the evidence. It was their action that destroyed it, not my words.

ctdonath3• 11 years ago

Not a new idea. There has long been a meme going around that if you enter your ATM PIN backwards, it will let you access your bank account but silently calls the police to your location (AFAIK it's just an urban myth). False passwords have a much older history than that.

Investigators are going to take a very dim view of such events, and probably didn't get to the point of demanding access without having documented sensible reason to believe the evidence is there - and may very well have actionable proof that you destroyed evidence, which will not turn out in your favor.

colanderman• 11 years ago

If that weren't an urban myth it must suck to be one of those 1% of suckers with palindromic PINs.

ClintEhrlich2• 11 years ago

The ATM feature you mentioned is not totally apocryphal. It's a software called SafetyPIN, which has apparently been patented but not commercially adopted.

dalke2• 11 years ago

"AFAIK it's just an urban myth"

Your doubt tells us that your PIN is not a palindrome. The second most common PIN is 1-1-1-1, followed by 0-0-0-0 (says http://www.datagenetics.com/blog/september32012/ ), and looking at the top 20 numbers, over 10% of the people have a palindromic PIN. (If selected randomly, that should be 2%.)

So either the police get called a lot, or there's some special flag that say "palindrome PIN - false alarm" (and it must be supported for international cards) ... or it's simply not true.

tehwebguy• 11 years ago

My home security system has a "duress code" that will disable the alarm sound and silently alert the company. It's not the reverse of the normal one, it's a different one that can be set.

rnovak2• 11 years ago

oh man, I'd get killed because it'd be pretty obvious when I start mouthing a 12-digit pin to try and figure out what it is backwards.....

mrits• 11 years ago

Awesome, my pin is 4444

mindslight• 11 years ago

You're assuming your device is still in control, and hasn't been imaged. This isn't the way a proper forensic process actually works.

More important to the issue at hand, I believe that in at least one case the reason for the passcode/phrase being "testimony" isn't so much that you're revealing what's in the locked container, but that you're demonstrating that you have access to/control over its contents. So entering your erasecode would undermine this point. A courier could not know a passphrase yet be deputized to erase the contents, but that is going to be an uphill argument.

What we really want is a proper layered steganographic filesystem, with an arbitrary number of unlockable levels. But we need an OS and apps that play nicely with that as well.

aianus5• 11 years ago

Or alternatively, you can have multiple layers of encryption a la Truecrypt Hidden Volumes (http://www.howtogeek.com/109210/the-htg-guide-to-hiding-your...)

The first layer contains something embarrassing but legal like gay porn, and the second layer contains the stuff you really want to hide.

You just unlock the first layer and act really embarrassed if forced and never acknowledge the existence of the second layer.

retbull• 11 years ago

Police do know about this and can (hypothetically) check to see if there is another encrypted volume inside. Also didn't Truecrypt shut down because they had some huge security vulnerability.

Shivetya• 11 years ago

I really don't see why not. My home security system has a code similar, disables the alarm but sends a signal to send police now without calling.

I could even see it with touch sensors, that being teaching it that the middle finger wipes the puppy.

With regards to the court decision, I am not sure it will stand in this context. The phones belong to the employer and not the employees. So how as an employer do you retain some access over your provided phones? I can see both sides here. To be honest as a company I don't think its worth the legal ramifications to have power over the content of the phone as it just opens a can of worms

Where I work we are required to pass code our phones if we access the corporate internet or exchange servers but we are not required to divulge our phone contents, passcode, nor place software on the phone giving the company any such ability.

stillsut• 11 years ago

Or after 3 unsuccessful tries, the system wipes itself. Try: macworld, oops...macw0rld, oops... macwor1d!

There's no law against incompetence, true?

logn• 11 years ago

A more fun solution would be to count the time it takes to enter the password. If it's too slow, then wipe the data. Or more advanced, count the tempo, beat and duration of key presses. "Your honor, my password is 1234121234... but be sure to type the 4's as dotted eighth notes, take a rest after the 2's, and moderato!"

spacemanmatt2• 11 years ago

port-knocking to a funky beat

bri3d• 11 years ago

https://en.wikipedia.org/wiki/Keystroke_dynamics#Use_as_Biom...

tsotha10• 11 years ago

Not really, no, because it turns out cops aren't actually stupid. When they arrest you and take your phone (or anything electronic, really) the first thing they do is clone the memory. You might succeed in wiping out a copy by giving them the alternate password, but that's just going to add to your charge list.

There was a case a few years back (discussed on HN) where a gang had software installed on everyone's phone that caused a remote wipe when activated. The cops did a big raid, and even though they took everyone's phone someone they hadn't caught yet was able to wipe them.

The cops changed their SOP so that when they get ahold of your phone the first thing they do is yank the battery.

nadams3• 11 years ago

When they arrest you and take your phone (or anything electronic, really) the first thing they do is clone the memory

Depends on the situation. If it's a raid due to software piracy - then probably. If they pulled you over for speeding and arresting you - they probably won't or even know what to look for.

And I really can't think of a way to clone a device like an Android device without unlocking it. ADB now a days requires your explicit permission from a prompt. And if you are like "oh they have ways" I would be very interested in that because that sounds like whatever they are doing are using an exploit or some sort of back door.

MichaelGG8• 11 years ago

How do you yank the battery and clone memory on an iPhone?

nickodell2• 11 years ago

When you say 'memory,' are you talking about volatile or nonvolatile memory?

nadams3• 11 years ago

Is this workable?

I know in the Windows Mobile/Blackberry days if you typed in the incorrect password so many times it would reset the device.

However, with many Android devices now a days have the ability to have a "guest mode" - that is activated using a different unlock code. This mode can be limited to not even be able to make/receive calls. Arguably most people won't know what this "mode" is and if they are in it.

paulsutter• 11 years ago

If you share the information-destroying code, then you're the one who caused the destruction of evidence after an investigation is underway. Which you don't want.

Perhaps some software that clears the phone when someone tries to break into the phone / copy data? A prudent security precaution for all sorts of reasons.

staunch• 11 years ago

I'm glad when the courts uphold the U.S. Constitution in a meaningful way. I have faith America will sort its shit out.

But we shouldn't have to rely on the law alone. We should be able to rely on technology to make it impossible to compel people to give up their most intimidate data. Computing devices have become an extension of the mind and no one on earth has a right to the contents of your mind.

ClintEhrlich2• 11 years ago

There's a more elegant solution: the government should be allowed to compel you to disclose your password if probable cause exists to search your device but only subject to an evidentiary privilege that prevents your knowledge of the correct password from itself being admitted as evidence to prosecute you.

Lawtonfogle8• 11 years ago

And what happens if you don't know the password or have forgotten it? I have old encrypted files and lost devices that have passwords I no longer remember.

MichaelGG8• 11 years ago

That's what judges are for, right? They'll review the evidence and judge if you're likely to actually have forgotten the password, or are just saying so. If you're traveling with a phone or laptop that appears to have been in-use by you, and don't know the password to it, chances are you're not being truthful. Otherwise, you'd have a plausible alibi story (I just bought this phone off Craigslist; here see the email and the ad).

venomsnake2• 11 years ago

What happens if i keep passwords on ram only servers in Elbonia, that self destruct if code is not entered once per week?

beeboop3• 11 years ago

Destruction of evidence charges? I am often surprised at how adaptive the law is for preventing loopholes like this. I would say with great confidence that this wouldn't fly.

snowwrestler8• 11 years ago

This concerns me a little bit, actually.

I know there are folks here on HN who believe that they should have an absolute power to exclude the government at all times. I'm not one of them, though. Particularly in situations where law enforcement has obtained a lawful warrant, I think they should have a way to get that information. People do commit crimes, and the police do need to solve them.

One way to grant the police access is to somehow give them privileged access to the encryption. For me, this idea is dead on arrival. There is no way to grant privileged access to the police without dangerously weakening the encryption in general. I'm a believer that encryption, properly implemented without backdoors, creates a lot more good than bad.

So what does that leave? It leaves compelling the owner of the phone to unlock it. If the police get a warrant to search your house, you are legally required to unlock the door and let them in. It seems to me that a passcode on the phone serves exactly the same purpose.

So, my concern is that if compelling the phone owner to unlock is not an option, it will put a lot more pressure behind the idea of encryption backdoors, as the "only option" to give law enforcement the power they need to do their jobs.

navait• 11 years ago

Given that key escrow failed eventually, what is different today that would make backdoors possible?

snowwrestler8• 11 years ago

Backdoors are an absolute bad idea.

My point is that when a bad idea appears to be the only alternative, there will be pressure (from people who do not understand the technology but do understand law enforcement) to do it even though it's bad.

LinuxBender• 11 years ago

There is no need for a back door. Phones are not encrypted once the user accesses them. The carriers can push and pull any files to or from the phone over the air. Some of them do not require a warrant. I was always told to never ask for one.

brewdad• 11 years ago

You aren't legally required to unlock your door and let the police in with a warrant. They will force their way in without your consent however, in some cases with out asking nicely first.

snowwrestler8• 11 years ago

To which law enforcement will say: "but there is no analogous way to force our way into strong encryption, so we need to create one." To reiterate: I think that would be bad. Backdoors are bad.

Given the choice, I'd rather have warrants compelling people to unlock, than a law saying that encryption has to have a backdoor so law enforcement can force their way in.

johnthedebs• 11 years ago

I'd argue that it's much more important to maintain strong privacy rights than it is to convict the minority of criminals that would be caught by indiscriminately searching their phones.

Keep in mind, almost all this data lives elsewhere too. If it's important enough they can still get it.

BonsaiDen• 11 years ago

The real problem here is the fact that there is missing oversight on these court orders, since it might be the case that the judge handing out the order does not have sufficient knowledge of the matter at hand and so there is a huge potential for misuse by the police or intelligence agencies.

In the end it boils down to the simply dilemma of choosing between either catching all "criminals" or protecting the rights of the people.

The latter way of course makes life a bit harder, since you'll never be able to prevent all crimes and people will potentially die, but people die all the time, since dying is a a basic risk of life.

The former way is essentially a rabbit hole, because it allows you to rewrite the definition of a "criminal" to just about anything you'd like and once you get a court order the "criminal" being is pretty much done with their life. This of course was and is still used in dictatorships of all kinds of sizes and employed by numerous secret police agencies around the world. Once there is a way to criminalize any action and then instantly "get rid" of that person, people who are going to use these powers WILL pop up and take over power.

Now of course in the short term no third party candidate is going to show up on the US politcal floor and take win a majority in the elections over night and then install a dictator system based on all the pre-existing powers by simply outlawing all other parties and anyone who objects to the new rulers claims. But 10 or 20 years from now things might be different and if we don't fight over abuse of the law and protect the general public we might end up in a pretty bad situation someday.

wpietri4• 11 years ago

Court orders are oversight. Police are by law limited on their own. To go further, they have to convince a judge.

The oversight on the judge? Higher-level judges. If you are arrested after a warrant that is later found to be invalid, the evidence collected based on the warrant is thrown out. This can go all the way to the supreme court. As it did in Franks v Delaware: https://en.wikipedia.org/wiki/Franks_v._Delaware

pjc502• 11 years ago

See https://news.ycombinator.com/item?id=10271971

It's not totally unreasonable. On the other hand, there's the 5th amendment, and you are not actually required to open the door when presented with a warrant, that's just a way of saving your door.

LordKano• 11 years ago

If the only evidence that someone committed a crime is on their cell phone, the authorities haven't done a thorough investigation and they shouldn't be rewarded for laziness.

Let's take it one step back from electronic devices.

If a corrupt businessman kept encoded records in a notepad, the authorities could compel him to turn over that notebook but no warrant can compel him to explain its contents. That's what encryption is. They authorities can seize the device but they can not force you to explain how to interpret what's in it.

Fortunately, high profile data breaches have put the thought in the public mind that weaknesses can be exploited. We can use that concern to keep people from demanding back-doors.

mikeash2• 11 years ago

Your argument as presented seems to conflate the right to access information and the ability to access information. (Not that you're necessarily doing this, but the way you've written it doesn't seem to distinguish.)

For example, under the law I have the right to go to the Moon. But I don't have the ability. Having the right doesn't compel anyone to create that ability for me.

Back to the issue at hand, I believe the government should have the right to access any information relevant to a criminal investigation, if they have a warrant for it. But I don't think they should be able to compel the ability. At best they should be able to compel that people don't interfere, but the actual ability to access the material is up to them. So while I don't think I fall into that category of person you describe as "believe that they should have an absolute power to exclude the government," I also think that given the current state of technology, that power does exist.

I'm not really worried about backdoors. They look to me to be so ridiculous that it won't even be possible to attempt to mandate them. Even if they are mandated, how will that be enforced? The genie is far out of the bottle on this.

snowwrestler8• 11 years ago

You're correct to make the distinction, but when it comes to law enforcement, both rights and abilities originate in the same place: legislation.

The law gives police the right to enter your premises if they have a valid search warrant. But it also gives them the rams, guns, body armor, etc.--the ability to exercise that right.

From a practical perspective, lawmakers try to address both rights and abilities when crafting legislation that enforces laws. I think it's really unlikely that politicians would say "here's the right, but the ability is your problem." No, they'll write a law that gets the effect they want, even if means granting powers that seem ridiculous to us. There is no shortage of things that have the force of law today despite seeming ridiculous to us.

I am worried about backdoors. They are being seriously considered at the highest levels of government.

AnthonyMouse• 11 years ago

So what does that leave? It leaves compelling the owner of the phone to unlock it.

You're constructing a false dichotomy. Backdooring all encryption and compelling the accused to provide a password are not the only alternatives. And they're both terrible.

You seem to understand why backdoors are problematic.

If we require the government to prove the original crime in order to convict for refusing to testify then there is no point in making refusal to testify a crime, because any time they could prosecute for it they could already prove the original crime and don't need the testimony. The only way it helps the government is if they are also allowed to convict people who refuse to testify when being prosecuted for crimes they did not commit.

You might argue that an innocent person can be vindicated by telling the truth instead of refusing to testify, so innocent people don't need to refuse to testify. But that doesn't work when the government is playing "show me the man and I'll show you the crime." Everything you say can and will be used against you in a court of law and lying to the police is illegal. You have to be allowed to shut up or the government would be able to convict anyone they want just by compelling them to keep talking until the imperfect human in the fish bowl says something a court will accept as incriminating evidence.

So you want to make an exception for passwords. But if passwords are different than other testimony it's because we should be more protective of them. They're the ultimate fishing expedition. There is no relationship between the password and the crime. If there is no evidence of the crime under investigation whatsoever (perhaps because you didn't do it), they still get to see everything on your phone. Then they can charge you with whatever completely unrelated crime their fishing expedition uncovered and use parallel construction to bypass any restrictions on what the original evidence was supposed to be used for.

Moreover, it remains possible to investigate crimes even if you can't look at the contents of every suspect's device. You still have all the evidence supplied by the victim and witnesses and all the methods of traditional police work that existed before everyone started carrying around personal surveillance devices. Being able to force suspects to supply their passwords might help, but lots of things might help, and most of those things might help enough that it would at least slightly increase the percentage of guilty people convicted. That only tells you that some civil rights come at the cost of not convicting some guilty people. It doesn't imply that we should erase every one that does.

Roper: So now you'd give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

Zigurd• 11 years ago

If a crime is so overwhelmingly in cyberspace that only the evidence on a computer would make the case, I'm very skeptical that that is the kind of crime that would impact me if it went unsolved.

jonknee• 11 years ago

When Apple said they can't turn over data the FBI said that means adorable children will die. I wonder what they will have to say about this?

msluyter• 11 years ago

Any lawyers (or wanna be lawyers) want to chime in -- is your thumbprint protected in the same way? I can see how the 5th amendment prevents them from compelling you to reveal your passcode, but does it prevent them from grabbing your thumb and using TouchID to unlock your phone? (That, or, just using a thumbprint provided during booking or whatnot...)

mikeash2• 11 years ago

I'm just in the wannabe category (not even that), but I seem to recall it being ruled that since this was just a physical thing, it could be compelled. If you're paranoid, try to shut off your phone before any such interaction, since it requires a passcode when powering on for the first time. Alternately, use the wrong finger five times in a row to lock out TouchID.

slinkyavenger• 11 years ago

From what I've read in the past, it doesn't cover your thumbprint. [1]

Thumbprints are physical, so they don't get the same protections. It's kind of like having a physical key to a physical lock. It's not self-incrimination for law enforcement to take that key and use it in the lock.

Same with writing your passcode on a piece of paper. It's no longer a matter of self-incrimination if they find that and use it.

[1] http://arstechnica.com/tech-policy/2014/10/virginia-judge-po...

CrossWired2• 11 years ago

The difference is described here in Orin Kerrs reversal of his opinion earlier today:

https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

Basically, having to provide something in your mind, the passcode, is testimony, a finger print, much like a key, is not testimony.

izzydata• 11 years ago

I assume there is no difference between being forced to reveal a phone password and being forced to reveal a password to some other system such as a PC, encrypted container or website?

lamby3• 11 years ago

Here's a somewhat-related quote from patio11 that I often refer back to:

Developers have a cultural quirk where they believe that, e.g., "file sharing is not theft" / "manipulating a URL can't be a crime" / "laws about disclosing protected information invariably contain a public policy exception which comports to the temperament of the dev community" are axiomatic and thereby create an internally consistent legal system which fails to falsify those axioms but also fails to meaningfully resemble the legal system we actually operate in.
This results in developers sincerely believe things like "Your Bitcoins are unprotected by the legal system because nobody can steal a number", which is a proposition that is absurd to the legal system as "JavaScript is not a programming language" is to a programmer.

(https://news.ycombinator.com/item?id=7367312)

In other words, no. There is—and should be—nothing special about computers.

Karunamon2• 11 years ago

File sharing is not theft, and there's unambiguous legal precedent to that effect. Really bad example. Stop conflating two laws that mean different things.

Nothing special about computers? Okay. "Persons, papers, and effects" no longer means emails, computer files, or anything other than physical, tangible documents that existed when that law was drafted. I really don't think that's the world you want to live in, or the argument you really want to be making.

The fact that the legal system thinks there's "nothing special about computers" is the cause of a great deal of difficulties that should not exist in a sane world. This is a world with new concepts that did not exist when a lot of our laws were written, and it doesn't make much sense to presuppose that there is or even can be a 1:1 mapping between the tangible and the not, all of the time.

digler9992• 11 years ago

There is to me. I patently reject the notion that information is property. And a lot of others do as well, at least to some extent.

Do you really believe that up until this week, "Happy Birthday" was someones 'property' ? Do you really believe that posting the ETA for city busses is a patentable innovation ?

Just because some legal thug perverts the definition of words (such as 'property' ) in the lawbooks does not change the way I regard them. Just like back when the books said that a black man was 3/5ths of a human being. Just because it says that in a book doesn't make it correct.

MichaelGG8• 11 years ago

Has any court ruled file sharing is theft not copyright infringement? This is clearly a case of dissolving the question[1]. No one disputes what's actually going on - copyright is being violated. What's in dispute is the definition of "theft". This is only interesting from a rhetorical/political point, as the flavour of the word theft strongly implies negativity, whereas copyright infringement is debatable.

blendo• 11 years ago

I think this ruling marks the recognition that the information processing performed by the devices we carry has, in a legal sense, "merged" with the thoughts we carry in our heads, and are now worthy of the same fifth amendment protections.

I'm in favor, but for some reason this also makes me a little worried.

eslaught• 11 years ago

Can someone comment on what level of court this decision was made at, and how final this decision is likely to be (i.e. how many more appeals are possible at this point)?

suneilp• 11 years ago

If backdoors legislation is passed, would there be any economic effect? Personally, I wouldn't be interested in doing anything more than "basic" stuff with my phone and would not feel compelled to upgrade phones so soon.

As for computing devices, aside from proprietary systems like Windows and Macs, do we not have reliable options that allow us to use uncompromised encryption?

Whats to stop app developers for embedding encryption packages or would they be forced to use compromised solutions?

Can you stop a person from building a secure line over a compromised medium, if that is even doable?

Jtsummers• 11 years ago

This is the reason (along with probably constitutional issues) I'm not terribly concerned about most of this sort of talk [0]. It seems to me that it'd be a temporary problem, mostly with proprietary systems, that would be resolved in a few years. Sort of like the encryption export issues in the 90s, and the OpenSSH project being hosted in Canada.

[0] Ok, I'm not concerned about it actually happening. The part of it that bothers me is the otherwise seemingly-sane individuals who agree with these backdoors. It's very difficult to discuss the issue with some of them because their interest in it is largely driven by emotions, specifically a desire for security and justice/revenge/control of criminal/terrorists/whatevers.

tormeh3• 11 years ago

Forcing the suspect to input the password still looks legal, according to the last paragraph. They just can't force you to tell them the password.

pvaldes• 11 years ago

Why they should really need your password?. They can ask the telephone company for a saved copy of your incoming and outcoming calls in the last year so they have already (or can trace) the 90% of the interesting data in your phone.

This seems also protect the policy from the temptation of doing stupid things that could lead to future lawsuits against them (like leaking photos of you drunken in a party, of from your girlfriend naked brushing her teeth and so...)

Forcing suspects to reveal phone passwords is unconstitutional, court says

Related Stories