I don’t fully understand the tech implications, but I think what’s being discussed is analogous to getting rid of one’s own key in case a court later orders you to give it to the police.
Actually, what the various police agencies are advocating is some designed-in access system (i.e. analogous to providing them a master key). We already have the option of ordering a particular investigation target to fork over records in response to a warrant, and to hold the target in contempt if he tries to evade the requirement by presenting the documents in unreadable form.
It’s more analogous to the police having made a master key for all the apartments in your building. That master key is not only accessible to them, but is potentially accessible to people with less noble motives, and the very existence of it means that others may try to create their own master key.
Then the police get mad at you because you changed your locks.
Can I ask what is likely a really, really stupid question?
If the police knock on your door and wave a warrant, do you have to let them in? What crimes are you committing if you refuse?
Because this locking of the phones is exactly equivalent to slamming the door in the cop’s face and throwing the bolt. Apple tightening the security is exactly equivalent to fortifying your door with steel so their battering rams don’t work anymore.
But there’s one difference - you can’t hide from the police inside your phone. They can still arrest you, try you, and prosecute you - presuming that by refusing to open your ‘door’ for them you have committed a crime.
Rather than attempting to fight technology itself, wouldn’t a more correct approach be for the police to get the legislators to just raise the legal penalties for refusing to open your phone when they order you to?
There is an uncertainty in the law regarding someone’s obligations to assist police with the search of encrypted electronic devices. The general view of courts is that if you have a physical key to a physical safe, the Constitution allows authorities, under proper judicial oversight, to compel you to provide the key.
However, the right against self-incrimination at this point is viewed as protecting things in ones mind, including passwords.
So while encryption may be like a steel bar on a door, it is not actually such a thing. Therefore the law applies differently to things unlocked by a physical key as compared to things unlocked by one’s mind.
It is actually an excellent question, and the law on this is rather new.
So presumably if you have a combination to a physical safe, you aren’t required to provide it and police have been stymied by this for decades. (Or they just busted out a drill or something.) Right?
To the best of my knowledge, the law isn’t 100% settled on that, but seems to lean a long way toward favoring the subject of the search warrant. ETA: but the difference is of course that the police can brute force the safe, but brute forcing encryption is much more challenging.
http://blogs.denverpost.com/crime/2012/01/05/why-criminals-should-always-use-combination-safes/3343/
I’d say that locking the phones is like locking your door. It keeps everyone out, including the police. Apple tightening the security is like having your home fortified to keep out thieves, snoops, overly curious friends, as well as the police. That you can lock your door in a cop’s face isn’t an argument for getting rid of locks.
Is it the legislature that levies the penalties for contempt of court? I would think that the court has fairly wide latitude when it comes to compelling actions. But, if what is on my phone is something that implicates me in a serious felony, it would be hard to come up with a penalty that would get me to unlock my phone for the court.
How about jail for the rest of your life?
IIRC the court once jailed a man for refusing to divulge where he hid money that was owed to his ex-wife. So the court put him in jail and there he got to stay till he decided to get the money he owed. Last I heard he was still in jail after 12+ years.
We have discussed this around here before and I think the legal eagles said the court can do this because you hold the keys to your own release. Do what the court has asked and you are free to go (for the contempt charge at least).
So, sit in jail forever or unlock your phone? What is on your phone would have to be really bad in that case to refuse to unlock it.
I don’t have a problem in principal with the government having tools to extract information from a phone with a warrant.
The problem I see is two fold
- If there is a back door, that is given to law enforcement it is only a short matter of time before some nefarious person also has this back door.
- If you are the sort of person who keeps child pornography or terrorist plots on your phone, you are probably motivated enough to obtain 3rd party encryption software off the web that will basically do the same thing. Writing an encryption app is something any halfway decent CS undergrad could do, so you can’t really keep the genii in the bottle.
This was the matter of Beatty Chadwick. He was released after 14 years.
Slightly different fact pattern, being divorce proceedings and not a criminal matter. I know the issue is unsettled, but I would think the testimonial aspect of revealing things like passwords and such from your mind would trigger greater protection than obvious money hiding scams in civil court.
And besides, I don’t think you can be held in contempt for exercising constitutionally guaranteed rights.
It’s not hard to imagine a tech that bricks the device after a certain amount of time without the code being entered.
An even better analogy is the government forcing a lock maker to design them so that they can all be opened by a master key.
“I’m so sorry, officer, I’ve been trying to remember the password myself, but I haven’t been able to.”
What leapt to my mind was a system where entering a specific wrong password bricks the system - same effect, but without worries if you leave your phone alone for the long weekend. Plus cops wouldn’t bother asking for the password at all - unless they wanted to nail you for destruction of evidence or something.
Depends on what I have on it. Like I said, if it has stuff that would implicate me in a serious felony, then sitting in jail on contempt of court may be preferable to sitting in jail convicted of mass murder or something.
And this is a good point too, even if the govt can force the lockmaker to make a key for all their locks, you can buy a third party lock that is not beholden to the govt.
I’d go with having a “brick” code. Tell the officer, “Oh yeah, the code is 5634.” The officer comes back, says it didn’t work. “Oh, my bad, I gave you the code to brick the phone.” (Or rather don’t admit that last part, act confused and befuddled at what happened. Accuse them of destroying your phone.)
ETA: ninja’d on that last part by begbert2
Speaking for myself, if a person voluntarily chooses life imprisonment to avoid having to confess to a crime that will get them…life imprisonment, then I’m totally okay with that. In either case they’re off the streets.
We have exactly that arrangement with TSA luggage locks. The master key is now available to all and sundry.
The obvious workaround is to clone a backup before trying to access the contents. Also, smart crackers (police or otherwise) would presumably work within a Faraday-cage environment in case of other variations on a duress code (e.g. the device transmits a “Help Help I’m Being Oppressed!” message) or an attempt to remote-brick the device.
I think actively doing something to brick the phone is different than the phone bricking itself.
Depends on conditions. Not having been convicted of whatever crime may put you in somewhat better conditions than having been convicted. It works out the same to us, on the outside, but it may be preferable to sit in jail on contempt about what you had on your phone than sit in jail convicted of what was on your phone.
That’s part of what is upsetting to LEO that apple is allowing you to lock down the USB, they won’t be able to clone it.
Only if they know that is what you did.
Right, but as I’m not particularly interested in the punitive aspects of imprisonment, I don’t care. I mean, yes, he might end up in a cushier prison cell and not be subjected to the extreme abuse that child abusers are usually subjected to, but if I’m deliberately trying to get him charged as an abuser with the intent that he be abused in prison then that smells like a violation of the eighth amendment.
They could still clone it by physically disassembling the phone to access the memory chips. Of course, that requires a significant investment of skilled labor, which ties in with the real issue – improved security doesn’t actually stop police access, but it does make it difficult enough that the government has to pick and choose targets carefully. Since they’re supposed to be doing that anyway, I see this as a feature rather than a bug.