This court ruling

[Goodspeed]

https://reason.com/2020/06/24/indiana-s ... amendment/

[princeofcarthage]

I skimmed through it, I believe the 5th amendment itself should be repealed so idk. Searching a phone is like searching a digital house, can 5th amendment block a house search warrant? Its similar to when feds search your house, they may or may not find the evidence.

[n0el]

A surprising yet appreciated ruling. Hopefully the Supreme Court takes this up and issues a more powerful precedent on digital privacy.

[deleted_user]

I believe the 5th amendment itself should be repealed

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

yeah pretty trash amendment ngl

[iNcog]

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[wardyb1]

Great ruling by the court however I certainly fear when this goes before the SCOTUS. Something about people over the age of 60 deciding leading technological questions without understanding the implicit effect that a certain decision could have is worrying.

[wardyb1]

I skimmed through it, I believe the 5th amendment itself should be repealed so idk. Searching a phone is like searching a digital house, can 5th amendment block a house search warrant? Its similar to when feds search your house, they may or may not find the evidence.

no one should have rights xD rights are for losers xD XD

[n0el]

Government should be able to do what it wants, whenever it wants it.

[chris1089]

Interesting article. Rights in the digital era are a mess.
Can it be compared to a search warrant where police can break down the door of a house to access information if they suspect there is incriminating evidence inside?
Also what do you have to prove to a judge to get a search warrant?

[wardyb1]

Interesting article. Rights in the digital era are a mess.
Can it be compared to a search warrant where police can break down the door of a house to access information if they suspect there is incriminating evidence inside?
Also what do you have to prove to a judge to get a search warrant?

I think your final question is very poignant actually. I'd be very interested to see if there were any stats ever kept on what percentage of search warrants are approved/denied and if they have changed over time.

As to your first question you could argue that it is similar to access to a house, but I'm not sure if it is a good reason to narrow the 5th amendment. Especially as your phone would probably tell a lot more about someone than the house. I am curious on the law as it stands though, if the cops can guess your password before it permanently locks them out, where does that stand? I'd presume illegal...? But I actually have no idea.

[chris1089]

Ye, because your phone has conversations on it.

[Mr_Bramboy]

Interesting article. Rights in the digital era are a mess.

Yep, this is the most important part. We're using laws from hundreds of years ago to tackle these issues. This has worked out fine thus far but we're not there yet. Who is responsible for the damage caused by an autonomous car? Who is responsible for the damage caused by a malfunctioning smart temperature meter? If I force you to hand over your Fortnite skins, is that stealing in the eyes of the law?

@Goodspeed This case has also occurred in The Netherlands and Europe, which is perhaps more important to you. In our country, the police are allowed to use biometrical data (i.e. face scanning, fingerprints, etc) to open up your phone. The simple reason behind this is that they're also allowed some other competencies, such as taking blood for an alcohol test. This competence is a product of the already existing one. On the other hand, the police are not allowed to force you to enter your password. This is contrary to the nemo-tenetur principle from the ECHR.

[Goodspeed]

Interesting that most of you seem to consider this a good ruling. I thought it was ridiculous.

This isn't a privacy issue. The police had a warrant to search the phone so you have no right to hide whatever is on there, same as when they have a warrant to search your house.
The 5th amendment doesn't give you the right to privacy, it gives you the right not to incriminate yourself by testifying. The argument for using it in this instance is that by unlocking said phone, the suspect is "testifying" that they know the phone's password. More importantly I think, they are testifying that the phone is theirs which means the evidence on it is also known to them.

But how is that different from searching someone's house? Can I not claim that by unlocking my house, I am "testifying" that I am able to unlock it and that therefore it's my house and whatever evidence they find in there would also be known to me?

According to the court, by unlocking her phone she is communicating to the police something they didn't already know, which is specifically the fact that she is able to unlock said phone. This sets a very bad precedent. Considering the amount of evidence that is usually on a phone, a lot of criminals can potentially go free if SCOTUS doesn't step in and rectify this. Just look at this particular case and consider the effect this could have on (other) cases of digital stalking. How do you prove someone is digitally stalking if you can't search their digital devices even with a warrant?

[chris1089]

I think it's complicated, but I think I agree with the court decision.

[Goodspeed]

@Goodspeed This case has also occurred in The Netherlands and Europe, which is perhaps more important to you. In our country, the police are allowed to use biometrical data (i.e. face scanning, fingerprints, etc) to open up your phone. The simple reason behind this is that they're also allowed some other competencies, such as taking blood for an alcohol test. This competence is a product of the already existing one. On the other hand, the police are not allowed to force you to enter your password. This is contrary to the nemo-tenetur principle from the ECHR.

Didn't know that, and disagree with that as well. After this ruling that is now apparently also the case at least in Indiana.
The notion that typing a password is in any way different from unlocking your phone through biometrics from a 5A perspective is, in my opinion, ridiculous. It's not like you're telling the police your password so what exactly are you "testifying" other than "I know how to unlock this phone"? (which you would also be saying if you unlocked it through biometrics)

Pedantic non sense.

[wardyb1]

Interesting that most of you seem to consider this a good ruling. I thought it was ridiculous.

This isn't a privacy issue. The police had a warrant to search the phone so you have no right to hide whatever is on there, same as when they have a warrant to search your house.
The 5th amendment doesn't give you the right to privacy, it gives you the right not to incriminate yourself by testifying. The argument for using it in this instance is that by unlocking said phone, the suspect is "testifying" that they know the phone's password. More importantly I think, they are testifying that the phone is theirs which means the evidence on it is also known to them.

But how is that different from searching someone's house? Can I not claim that by unlocking my house, I am "testifying" that I am able to unlock it and that therefore it's my house and whatever evidence they find in there would also be known to me?

According to the court, by unlocking her phone she is communicating to the police something they didn't already know, which is specifically the fact that she is able to unlock said phone. I think that's quite a stretch, and that it sets a very bad precedent. Considering the amount of evidence that is usually on a phone, a lot of criminals can potentially go free if SCOTUS doesn't step in and rectify this. Just look at this particular case and consider the effect this could have on (other) cases of digital stalking. How do you prove someone is digitally stalking if you can't search their digital devices even with a warrant?

I don't think it is worth while getting into a legal discussion when we are all "IANAL". But it is quite clear that it is not as cut and dry as you make it as proven by the arguments laid out in the article.On the digital stalking aspect you could very easily prove digital stalking without access to the defendant's phone. You could obtain phone records from the service provider. Logs from ISP's. You'd have the accuser's phone and its content.

[Goodspeed]

My argument is not really a legal one, also I don't see why it isn't worthwhile to discuss law for non-lawyers. Are we all political science majors? No. Yet we discuss politics.
Do you think it should be legal for police to search a device that they have a warrant to search?

[wardyb1]

My argument is not really a legal one, also I don't see why it isn't worthwhile to discuss law for non-lawyers. Are we all political science majors? No. Yet we discuss politics.
Do you think it should be legal for police to search a device that they have a warrant to search?

We all can vote though. I'm not sure how your argument isn't a legal one as you say you don't think it is testifying against yourself. That is the crux of the law.

I'll bite nonetheless. As it stands, I'm of the belief (this is anecdotal, I haven't actually researched this phenomena), that warrants seem to given out much too liberally which is part of my hesitation to support warrants allowing the searching of phones. I think providing a password is testifying against yourself. When someone has a warrant to search my house, I'm not obliged to provide the key. From the second I am arrested or being arrested, I have the right to not say a word, not make any action. I can go to trial having not made any action or said a single word. Providing a password is antithetical to that.

Again although there are most definitely similarities between houses and phones there are also differences. If you get a warrant to my house and seize my encrypted computer, am I now forced to de-encrypt it for them? If someone gets a warrant to search my phone and on my phone is my banking app with a password. Am I now required to give up my banking records instead of them requiring to get another warrant and going through the bank? A phone nowadays is almost an extension of who we are. It isn't merely a possession. All in all, I fear the outcomes if this becomes legal. I'd expect the continuing erosion of civil liberties and the freedom and privacy of citizens under growing government powers.

[princeofcarthage]

I skimmed through it, I believe the 5th amendment itself should be repealed so idk. Searching a phone is like searching a digital house, can 5th amendment block a house search warrant? Its similar to when feds search your house, they may or may not find the evidence.

no one should have rights xD rights are for losers xD XD

You and I have very different views of the government. In either or both of our cases practicality might differ, however, I do not believe government is something that is different from common public. After all it is we who vote and decide our representatives to make policy decisions. While you probably believe in personal good I do believe in greater good. Why should a criminal be potentially allowed to walk free because police or court cannot force himself to admit to the crime he committed? Do you know how many people commit crimes every year, yet walk free or with near none consequences because there is a flaw in law they can abuse?

[iNcog]

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[wardyb1]

I skimmed through it, I believe the 5th amendment itself should be repealed so idk. Searching a phone is like searching a digital house, can 5th amendment block a house search warrant? Its similar to when feds search your house, they may or may not find the evidence.

no one should have rights xD rights are for losers xD XD

You and I have very different views of the government. In either or both of our cases practicality might differ, however, I do not believe government is something that is different from common public. After all it is we who vote and decide our representatives to make policy decisions. While you probably believe in personal good I do believe in greater good. Why should a criminal be potentially allowed to walk free because police or court cannot force himself to admit to the crime he committed? Do you know how many people commit crimes every year, yet walk free or with near none consequences because there is a flaw in law they can abuse?

I very much understand we have very different views of government. I just think your view is stupid. You are fine to think mine is stupid.

As to your points, forcing anyone to admit to a crime is stupid because you get false confessions. That just destroys the premise of getting justice. I don't know how many people walk free who actually committed a crime because it is irrelevant imo. I ask myself one question. What would I rather happen. 100 criminals walk free to save 1 innocent person from being found guilty, or 100 innocent people being found guilty to ensure 1 criminal is locked up. I will answer with the first every single time.

[iNcog]

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[princeofcarthage]

Show hidden quotes

I skimmed through it, I believe the 5th amendment itself should be repealed so idk. Searching a phone is like searching a digital house, can 5th amendment block a house search warrant? Its similar to when feds search your house, they may or may not find the evidence.

no one should have rights xD rights are for losers xD XD

You and I have very different views of the government. In either or both of our cases practicality might differ, however, I do not believe government is something that is different from common public. After all it is we who vote and decide our representatives to make policy decisions. While you probably believe in personal good I do believe in greater good. Why should a criminal be potentially allowed to walk free because police or court cannot force himself to admit to the crime he committed? Do you know how many people commit crimes every year, yet walk free or with near none consequences because there is a flaw in law they can abuse?

I very much understand we have very different views of government. I just think your view is stupid. You are fine to think mine is stupid.

As to your points, forcing anyone to admit to a crime is stupid because you get false confessions. That just destroys the premise of getting justice. I don't know how many people walk free who actually committed a crime because it is irrelevant imo. I ask myself one question. What would I rather happen. 100 criminals walk free to save 1 innocent person from being found guilty, or 100 innocent people being found guilty to ensure 1 criminal is locked up. I will answer with the first every single time.

Why do you think a person will falsely confess to a crime and spend years in jail instead of being free and say eating a burger?

[wardyb1]

Show hidden quotes

I skimmed through it, I believe the 5th amendment itself should be repealed so idk. Searching a phone is like searching a digital house, can 5th amendment block a house search warrant? Its similar to when feds search your house, they may or may not find the evidence.

no one should have rights xD rights are for losers xD XD

You and I have very different views of the government. In either or both of our cases practicality might differ, however, I do not believe government is something that is different from common public. After all it is we who vote and decide our representatives to make policy decisions. While you probably believe in personal good I do believe in greater good. Why should a criminal be potentially allowed to walk free because police or court cannot force himself to admit to the crime he committed? Do you know how many people commit crimes every year, yet walk free or with near none consequences because there is a flaw in law they can abuse?

I very much understand we have very different views of government. I just think your view is stupid. You are fine to think mine is stupid.

As to your points, forcing anyone to admit to a crime is stupid because you get false confessions. That just destroys the premise of getting justice. I don't know how many people walk free who actually committed a crime because it is irrelevant imo. I ask myself one question. What would I rather happen. 100 criminals walk free to save 1 innocent person from being found guilty, or 100 innocent people being found guilty to ensure 1 criminal is locked up. I will answer with the first every single time.

Why do you think a person will falsely confess to a crime and spend years in jail instead of being free and say eating a burger?

You said "police or court cannot force himself to admit to the crime". My presumption is this is through some form of torture as how else do you get someone to admit to a crime?
There is a huge amount of evidence of confessions under duress and the unreliability.

EDIT: I should also add that it doesn't even need to be torture. There are many police tactics which have been banned because it elicits unreliable confessions. A perfect example of this imo opinion is something like the video of the Brendan Dassey confession. Again the body of evidence is overwhelming in this regard. Humans are by no means perfect and under pressure often make suboptimal decisions. You should really research this entire topic as it is a fascinating look into psychology.

[Goodspeed]

My argument is not really a legal one, also I don't see why it isn't worthwhile to discuss law for non-lawyers. Are we all political science majors? No. Yet we discuss politics.
Do you think it should be legal for police to search a device that they have a warrant to search?

We all can vote though. I'm not sure how your argument isn't a legal one as you say you don't think it is testifying against yourself. That is the crux of the law.

We all have to follow the law, too
I meant that I'm more arguing that it practically isn't, rather than legally. Legally, you could argue (and you did argue) that any action taken including typing in a password is testifying against yourself. But I'm looking at this from a "common sense" point of view, and noting that providing a password is not in any way a "testimony".

I'll bite nonetheless. As it stands, I'm of the belief (this is anecdotal, I haven't actually researched this phenomena), that warrants seem to given out much too liberally which is part of my hesitation to support warrants allowing the searching of phones.

I haven't researched it either, but I definitely can imagine that warrants for searching phones are commonly given out too liberally. But that's not what this court ruled, nor is it the reason it ruled this way, so it's not really relevant here.

I think providing a password is testifying against yourself. When someone has a warrant to search my house, I'm not obliged to provide the key. From the second I am arrested or being arrested, I have the right to not say a word, not make any action. I can go to trial having not made any action or said a single word. Providing a password is antithetical to that.

Right, that is what I disagree with. I think the notion that unlocking a phone is in any way a "testimony" has to be considered a legal loophole that should be closed by the SC.

Again although there are most definitely similarities between houses and phones there are also differences. If you get a warrant to my house and seize my encrypted computer, am I now forced to de-encrypt it for them? If someone gets a warrant to search my phone and on my phone is my banking app with a password. Am I now required to give up my banking records instead of them requiring to get another warrant and going through the bank? A phone nowadays is almost an extension of who we are. It isn't merely a possession. All in all, I fear the outcomes if this becomes legal. I'd expect the continuing erosion of civil liberties and the freedom and privacy of citizens under growing government powers.

Yeah there are differences but not from a "self-incrimination" point of view, in my opinion, which is the only relevant PoV in this case. I do agree that the way we handle police wanting to search our phones deserves some attention from lawmakers because a warrant to search an entire phone and everything on it is, in this day and age, almost always too "broad".