Man can be jailed indefinitely for refusing to give passcode, court rules

Discussion in 'Law & Justice' started by kazenatsu, Nov 16, 2020.

  1. kazenatsu

    kazenatsu Well-Known Member Past Donor

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    New Jersey's top court has ruled that police can compel suspects to give up their phone passcodes, and does not violate the Fifth Amendment.

    State v. Robert Andrews (A-72-18 ) (082209)
    Argued January 21, 2020 - Decided August 10, 2020
    J. Soloman was the judge who wrote the opinion.

    The Court considered whether a court order requiring a criminal defendant to disclose the passcodes to his passcode-protected cellphones violates the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution or New Jersey's common law or statutory protections against self-incrimination.

    The target of a State narcotics investigation, Quincy Lowery, advised detectives that defendant Robert Andrews, a former Essex County Sheriff's Officer, had provided him with information about the investigation and advice to avoid criminal exposure. The State obtained an arrest warrant for defendant, who was later released, and search warrants for defendant's iPhones, which were seized.

    Later that day, detectives from the Essex County Prosecutor’s Office interviewed Lowery, who detailed his relationship with Andrews. Lowery explained that they were members of the same motorcycle club and had known each other for about a year. During that time, Andrews registered a car and motorcycle in his name so that Lowery could use them. Lowery also told the detectives that he regularly communicated with Andrews using the FaceTime application on their cellphones. Lowery claimed that during one of those communications, Andrews told him to "get rid of" his cellphones because law enforcement officials were "doing wire taps" following the federal arrests of Crips gang members. Lowery relayed his suspicion that he was being followed by police officers to Andrews and texted him the license plate number of one of the vehicles Lowery believed was following him. According to Lowery, Andrews informed him that the license plate number belonged either to the Prosecutor's Office or the Sheriff’s Department and advised him to put his car "on a lift to see if there is a [tracking] device under there." Lowery claimed that he also showed Andrews a picture of a man Lowery suspected was following him and that Andrews identified the individual as a member of the Prosecutor's Office. Lowery's cellphone records largely corroborated his allegations. Following their second interview with Lowery, the State obtained Communication Data Warrants for cellphone numbers belonging to Andrews and Lowery. The warrants revealed 114 cellphone calls and text messages between Lowery and Andrews over a six week period. Andrews was indicted for official misconduct, hindering, and obstruction.

    According to the State, its Telephone Intelligence Unit was unable to search Andrews's iPhones. A State detective contacted and conferred with the New York Police Department's Technical Services unit, as well as a technology company, both of which concluded that the cellphones' technology made them inaccessible to law enforcement agencies. The Federal Bureau of Investigation's Regional Computer Forensics Laboratory advised that it likewise would be unable to access the phones' contents. The State therefore moved to compel Andrews to disclose the passcodes to his two iPhones.

    Andrews opposed the motion, claiming that compelled disclosure of his passcodes violates the protections against self-incrimination afforded by New Jersey's common law and statutes and the Fifth Amendment to the United States Constitution.

    The trial court rejected Andrews’s arguments but limited access to Andrews's cellphones "to that which is contained within (1) the 'Phone' icon and application on Andrews's two iPhones, and (2) the 'Messages' icon and/or text messaging applications used by Andrews during his communications with Lowery." The court also ordered that the search "be performed by the State, in camera, in the presence of Andrews’s defense counsel and the court," with the court "reviewing the PIN or passcode prior to its disclosure to the State." The Appellate Division affirmed.​


    It appears that in this story, the whole thing the authorities were looking for is a former law enforcement officer allegedly alerting one of his friends that the police were doing wiretaps, and then also confirming that a license plate number from a car the friend believed was following him likely belonged to law enforcement.
    Apparently these two acts constituted a crime, and gave authorities reason to search his phone and force him to provide them his passcode.

    https://techcrunch.com/2020/08/12/new-jersey-police-phone-passcode/


    Access Denied -
    It's unconstitutional for cops to force phone unlocking, court rules
    US courts disagree on whether suspects can be forced to unlock their phones.
    Timothy B. Lee, 6/24/2020, Ars Technica

    Indiana's Supreme Court has ruled that the Fifth Amendment allows a woman accused of stalking to refuse to unlock her iPhone. The court held that the Fifth Amendment's rule against self-incrimination protected Katelin Seo from giving the police access to potentially incriminating data on her phone.

    The courts are divided on how to apply the Fifth Amendment in this kind of case. Earlier this year, a Philadelphia man was released from jail after four years of being held in contempt in connection with a child-pornography case. A federal appeals court rejected his argument that the Fifth Amendment gave him the right to refuse to unlock hard drives found in his possession. A Vermont federal court reached the same conclusion in 2009 - as did a Colorado federal court in 2012, a Virginia state court in 2014, and the Massachusetts Supreme Judicial Court in 2014.

    But other courts in Florida, Wisconsin, and Pennsylvania have reached the opposite conclusion, holding that forcing people to provide computer or smartphone passwords would violate the Fifth Amendment.

    Lower courts are divided about this issue because the relevant Supreme Court precedents all predate the smartphone era. To understand the two competing theories, it's helpful to analogize the situation to a pre-digital technology.

    A safe analogy
    Suppose that police believe that a suspect has incriminating documents stored in a wall safe and they ask a judge to compel the suspect to open the safe. The constitutionality of this order depends on what the police know.

    If the government can't show that the suspect knows the combination - perhaps the suspect claims the safe actually belongs to a roommate or business partner- then all courts agree that forcing the suspect to try to open it would be unconstitutional. This is because the act of opening the safe functions as an admission that the suspect owns the safe and the documents inside of it. This fact could be incriminating independent of the contents of any documents found inside the safe.

    On the other hand, if the government can show that the suspect knows both the password and which specific documents are in the safe - perhaps because the suspect described the safe's contents during an interrogation - then all courts agree that the suspect can be forced to open the safe. That's because the Fifth Amendment is a right against self-incriminating testimony, not the production of incriminating documents.


    But what if the state can show the suspect knows the combination but doesn't know which documents are in the safe? Here the courts are split.

    One theory holds that only the act of opening the safe is testimonial. Once the safe is open, the safe contains whatever documents it contains. The police get the information in the documents directly from the documents, the same as they would if they'd found them lying on the suspect's desk. So the contents of the documents are not compelled testimony.

    The other theory - the one endorsed by Indiana's Supreme Court this week - holds that it matters whether the police know which documents they're looking for. If the police are looking for specific documents that they know are in the safe, then there may be no Fifth Amendment problem. But if the request is more of a fishing expedition, then it's barred by the Fifth Amendment, since the act of opening the safe gives the police access to information they wouldn't have otherwise. Some courts have found this argument particularly compelling due to the vast amount of information on modern smartphones.
    https://arstechnica.com/tech-policy...ts-unconstitutional-to-force-phone-unlocking/


    also see related thread:
    Man jailed for refusing to give police password to computer files
     
  2. modernpaladin

    modernpaladin Well-Known Member Past Donor

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    This appears destined to go to the SC.
     
    Last edited: Nov 16, 2020
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  3. wgabrie

    wgabrie Well-Known Member Donor

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    Well, it seems to me that if Judges can issue warrants on probable cause, then they have the power to nullify a person's claim to private property rights.
     
  4. FreshAir

    FreshAir Well-Known Member Past Donor

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    so if you forget your pass code you can be locked up forever?

    I don't think this would pass the mustard unless the defendant admitted he knew it

    of course he could later pretend to give it, and it not work, and he swear that was the right code, what could they do?
     
    Last edited: Nov 17, 2020
  5. FreshAir

    FreshAir Well-Known Member Past Donor

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    the reality is, the government is pushing for backdoors into all our devices, so nothing will be private in the future

    and as most of our data will be stored in the cloud in the future, they can just ask google or apple for it or whomever
     
    Last edited: Nov 17, 2020
  6. kazenatsu

    kazenatsu Well-Known Member Past Donor

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    Civil contempt laws apply. These laws are different in different states. In the majority of states, there is a time limit. In some states the time limit is 2 years, and in some states the time limit lasts as long as the trial lasts (if it is the trial against another person), which typically can be close to 2 years. In the majority of states there is no right to a trial in civil contempt proceedings. In New Jersey, the time limit for civil contempt without a trial is 6 months, but if convicted at trial it can be 2 years. There are a small number of states that have no time limit and no right to trial (where you could indeed theoretically be locked up forever). Civil contempt is usually not considered an ordinary crime, so the usual criminal laws do not all apply.
     
  7. FreshAir

    FreshAir Well-Known Member Past Donor

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    yeah, I have never heard of anyone being locked up forever for forgetting a pass word, and doubt we ever will - but then again, who knows
     
  8. kazenatsu

    kazenatsu Well-Known Member Past Donor

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    The law could theoretically allow them to do it. That alone should be disturbing.
    Murphy's law: "That which can happen, will eventually happen"

    I suppose we should just excuse and ignore existing law, believing "that will probably never happen"?
     
    Last edited: Nov 20, 2020
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  9. kazenatsu

    kazenatsu Well-Known Member Past Donor

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    This isn't about property rights. It's about government threatening to put individuals in prison if they do not give government carte blanche access to information.

    The government can seize any physical property, that aspect is not what is being debated here. The issue is after the government seizes someone's physical property which contains information, but that information is not intelligible without an additional piece of information which is stored in the owner's brain. Then the government seeks to force that information out of the person.

    This has nothing really to do with property rights, unless you were talking about government having property rights over individual human bodies. (Which I don't think you are)
     
    Last edited: Nov 20, 2020
  10. wgabrie

    wgabrie Well-Known Member Donor

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    I was thinking of the fourth amendment.
    Amendment IV
    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.​

    Really this is the kind of thing that needs to be decided by a judge.

    But I would suggest that if a person must open the front door (or even closet doors and other things that are locked) to the police, then I would think that unlocking a cell phone would be in the same spirit of things.
     
  11. kazenatsu

    kazenatsu Well-Known Member Past Donor

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    Your argument now is one based totally off of semantics, you're not looking at the actual meaning of what you're talking about.

    An owner has to not interfere with police opening things that are locked (if they have a court order).
    That is still a very different thing from requiring the person to unlock those things.

    Do you understand the difference? Requiring a person not do something and not to interfere, versus requiring a person to do something themselves.

    (The requirement to "let the police in" is not quite exactly the same thing as being literally required to open the door to let them in)

    What you have done is also a terrible analogy because, if law enforcement wants to gain access through a locked door, it is only a matter of time and trouble. There is no question that they could get through that locked door if they really wanted to. Not opening the door for them would just be pointlessly delaying the inevitable, perhaps causing them unnecessary expense.
    That is not the case with information, where there may be no way for the government to access it, not through ordinary force.
     
    Last edited: Nov 20, 2020
  12. Siskie

    Siskie Active Member

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    What is the longest they can hold them on contempt of court?What would amount to a life sentence (don’t give up the information, stay in prison) for refusing the court would seem to fall under “cruel & unusual punishment” worse than some people get for a drunk driving manslaughter charge.
     
    Last edited: Nov 29, 2020
  13. kazenatsu

    kazenatsu Well-Known Member Past Donor

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    That question has already been answered. (post #6)


    You might be interested in this:

    In the case of a man who has spent four years in prison for civil contempt, a federal appeals court has ruled that the maximum penalty for that violation is 18 months.

    A split three-judge panel of the U.S. Court of Appeals for the Third Circuit ordered the release of Francis Rawls, who is under prosecution for possession of child pornography and was held in contempt for refusing to give investigators his computer password.​

    Third Circuit Holds 18 Months in Jail the Maximum Penalty for Civil Contempt | The Legal Intelligencer (law.com) February 2020

    So apparently he had been held in prison for 4 years by the state of Pennsylvania, without having been convicted of crime, until a federal court intervened and said he should not have been held in prison for more than a year and a half.
     
    Last edited: Nov 29, 2020
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  14. Eleuthera

    Eleuthera Well-Known Member Donor

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    Ah yes, the Land of the Free and Home of the Brave!
     
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  15. JakeJ

    JakeJ Well-Known Member Past Donor

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    It is not about privacy, it is about the right to remain silent and not being required to incriminate yourself.

    If this holds, then police could order "tell us where the body is?" "Where did you hide the drugs?" "Where are your drugs?":"Get us a printout of your bank account?"
    "Tell us who all your brother's friends are?" or any other questions about any suspicion of desired evidence or info - and hold the person in prison forever until the person acts as an investigator for the police required to incriminate themselves.

    Our computers for our high security-related business are old Motorola computers with encryption software predating the requirement that such software have a backdoor key available to the government. Nobody could break thru them. When the FBI had a search warrant one time for our computers - not involving any suggestion of illegal by the company but rather looking for certain people as possibly have been customers, my answer was not only no, but that they can't even come in the building - explaining they could never get thru the encryption. The DHS backup our refusal. However, when they told us who they were looking for, we did the search and gave them the info they wanted. Nobody, I mean nobody, gets into our business computers.

    I would like to see a company that would create ghost software that if a specific wrong password was entered or too many attempts to guess at the password made, it would covertly scramble whatever files were selected to be scrambled. The person then could tape the password under the computer or leave it sort of hidden in the desk to be found. Anyone who took the computer would try that password, not knowing they are destroying the files by doing so. I think it would sell very well. Even if it could be proven the person gave the police the destructo password outright, there's not much they or a court could do about it. What is gone is gone. Then again, the software could scramble itself after scrambling the file, eliminating any possible proof the erasure/scrambling was due to deliberately being given the file-killer-password.

    It also would be nice to have a safe that if the wrong combination was entered too many times, an internal battery powered very strong electro-magnet would activate to destroy computer UBS chip contents.

    I don't think the police should ever be able require anyone to say anything. The right to remain silence should be absolute in regards to criminal cases.
     
    Last edited: Dec 30, 2020
  16. JakeJ

    JakeJ Well-Known Member Past Donor

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    A terrible shortcoming in the US Constitution is it provides almost no right to privacy. Even for a person's home, the police can ALWAYS get a search warrant for anything anywhere.
     
  17. JakeJ

    JakeJ Well-Known Member Past Donor

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    Land of the regulated and home of the imprisoned seems increasingly more accurate.
     
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  18. JakeJ

    JakeJ Well-Known Member Past Donor

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    BTW, just like prosecution for lying to the FBI seems more common that actually committing a crime, few people realize that prosecution for illegal communications via cell and hard phones in a conspiracy context is extremely common. You call a friend you know has a felony convict and a shotgun, saying "you should get rid of that shotgun before you get caught with it!" as a friend, and the federal government might prosecute you for felony conspiracy AND illegal telecommunication. Even just calling someone saying "I drove by your house and they're a bunch of police cars outside" could result in federal conspiracy, illegal communications and interference with justice charges.

    A fella I know has a state felony conviction for illegal communications by cell phone when he saw police headed towards some friends on a boat, telling them the police were coming. He plead guilty to a felony with only probation rather than facing all the other charges with huge potential prison time they also were going to pile onto it if he didn't.
     
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  19. JakeJ

    JakeJ Well-Known Member Past Donor

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    I do not believe anyone should ever be able to be compel anyone to help the government prosecute him/her.
     
    Last edited: Dec 30, 2020
  20. Eleuthera

    Eleuthera Well-Known Member Donor

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    James Comey prosecuted Martha Stewart for telling white lies to the FBI, but gave Hillary Clinton a free pass for violating federal security statutes.

    The rule of law is dead in this country.
     
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