I wouldn't give cops the combination to my safe. Why would I give them the password for my phone? When did our legal system go from "innocent until proven guilty" to "presumed guilty?" From my experience over the last 30+ years I have no faith the legal system.
Innocent until proven guilty is what they taught you in middle school. In the real word it's the other way around. You know 'the cops wouldn't arrest you if you didn't do it' and other such crap.
It's been technically innocent untill proven guilty has been the kay of the land since the early part of the 20th century only to get ramped up in the 70s
Totally agree with Jay. Keep or install to floorboard (screwed into it-not able to remove) floor safe and keep phone locked in there if stopped by police. No phone to unlock if you don't have it with you or in your presence.
During a criminal trial in my area the judge told the jury they could assume guilt when the defendant didn't testify. Higher courts threw out that conviction faster than a speeding bullet.
I have to remember the GM Executive who took notes at their board meetings. He wrote in very small cursive lettering which only he could read. The ruling was that he had complied with the order to turn over all his notes but could not be compelled to read back what he had written, at which point the prosecution's case fell apart since nobody was talking and no other evidence of wrongdoing existed. GM then implemented a rule of there being no recordings or notes being taken at their Board Meetings. The real problem here is that we've become a "Police State" where the Government and the people in it are immune from being held personally responsible for any knowingly wrongful actions they take. While some level of qualified immunity is necessary, that has to be held to a minimal level, with successful prosecutions for such acts ending with equal sentences to those which would be given to an average person doing the same thing, or the citizens will no longer be free. A government which cannot be held responsible will not act responsibly because it's not in their best interest to do so.
@@americafirst6492 The entire group of laws known as the "Patriot Acts" which were the polar opposite of their name. And numerous laws passed hence. And numerous Court rulings since then too which clearly run against the intentions of our Nation's Founders. It's no longer justice, but "just us", and the citizen/subjects be damned.
I followed an IT guy who would encrypt his entire hard drive on his laptop. He modified the code for the encryption software so instead of saying “username” is said “Hard drive failure detected, would you like to reformat?” If customs asked to unlock his laptop he just showed them,”sorry, the hard drive must have been damaged in transit.” As soon as he gets through he can log into the encryption software and he was good to go.
that works well as long as its used that way. If its a device that gets seized in a criminal investigation, they would likely figure out pretty quick that the hard drive is fine.
@@ZE0XE0 It's still encrypted and without entering the password to decrypt the contents on-the-fly, the data is useless. Attempting to force break the contents can take many years, and in some cases decades or centuries, so the contents would be useless.
You have the right to an attorney. Next they are going to say "Oh, so you got an attorney? Clearly they are guilty. An innocent person would never get an attorney if they weren't guilty."
Sadly enough, a lot of police proceedural shows certainly frame it this way. And you have to wonder how many jurors hear the defendant got an attorney and immediately thought about all those crime shows they watched...
@@nemothesurvivor From all the crime shows I have watched, I have determined that the one that is guilty is the one that is most cooperative and friendly. The belligerent asshole that lawyers up is always the red herring.
@@wingracer1614 things must've changed. I know growing up that the theme was always "Oh no, they figured out I'm guilty. Let me ask for a lawyer." So it wouldn't be out of the question for modern takes of the genre to flip the script to keep people guessing.
Actually, MP, it's worse than that. The Supreme Fascists ruled a few years ago that remaining silent CAN be used against you in a court of law, as suggesting guilt!! Their Police State bootlickery ruling says you must announce that you are exercising your right not to be a witness against yourself !!(the 5th) The moment I encounter any cops, I announce that I'm exercising ALL MY CONSTITUTIONAL RIGHTS!! I go further and ask them if THEY understand my rights! And they F'Kn HATE it!
@@wingracer1614 right on👍! There was a large study done about outcomes of interactions with cops. (Sorry, can't remember source) It found that the outcome (even fatal) didn't change whether you were overly cooperative, or overly uncooperative!
This is *EXACTLY* why i don't use fingerprint or facial recognition. I use a password and i will never let law enforcement have it no matter what they say or do. Nobody has a right to know what is inside my head.
Yeah... I'm struggling to think of how I can use my phone without fingerprint. AND just realized my computer should have encryption and a password even though I don't need that for security inside my own home.
The good news is even if the fingerprint reader is enabled, most phones require the pin after a reboot or even after sitting for so long without being unlocked or if the fingerprint unlock fails so many times in a row. So depending on how long it's been since they took the phone or if they let the phone go dead, the pin would be required regardless, you could also have only one finger programmed to the fingerprint reader so if they try to take your hand & force you to unlock it, you just put the wrong finger on the reader a few times in a row & it will be locked out & require the pin then. My hands are often beat up from working on cars & the fingerprint reader fails half the time when I'm actually trying to unlock it requiring me to enter the pin. Also you could claim you just forgot the pin.. I've actually had that happen before with a new phone & had to just stop thinking about it for a bit then the next day randomly remembered it again. I could see someone who is being questioned & is stressed could actually just forget it with everything going on.
A good reason for someone not to unlock their phone for other people, even if they are a police officer or some other agent of the state, is possible tampering, for example transferring incriminating evidence onto the phone, such as pictures, audio files, etc. If they are a human, they are capable of crime, so if you have the right to keep your devices inaccessible, do so for your own safety.
This video again emphasizes how important it is that each citizen stand up for all the rights under the Bill of Rights, for if we give up any one of those rights we will lose access to all of them.
8:26 If you remember the Kyle Rittenhouse criminal trial, when DA Binger stated to the jury that Rittenhouse refused to cooperate with the police investigation (or some such similar comment), defense attorney Richards objected, which led to, among other things, the Judge saying to Binger, "Don't be brazen!" Richards demanded a mistrial, the Judge refused. Rittenhouse was acquitted. If he had been convicted then Richards would have had an easy appeal. Anyway, this is one of your best lessons. How did the Utah Supreme Court rule?
The analogy I would make, if the police had PC you killed your wife and buried the body somewhere unknown, can a warrant compel you to draw them a map to the location of the body? If the answer is no, then the same should apply to passwords since you are essentially drawing them a map to potentially incriminating evidence. They're free to attempt to break into the phone, just as they're free to use cadaver sniffing dogs to find a body. A warrant should only be able to compel you to stand aside and not hinder their investigation.
Heh, I'd lead them on a wild goose chase. I would draw a map taking them to the most impossible places to get to, and watch them struggle only to find nothing. In the end, I'd say something like "I could have sworn this was the spot, guess my memory isn't so good".
Agree. Another example: proof of guilt might be found in your locked file cabinet. Like a phone, it holds your private documents. Are you required to give them the key? Of course not. It’s up to them break it open or pick the lock.
I have heard in cases where the defendant had an encrypted hard drive. And that giving them the password then allows them to tie you to ownership of it's contents because you had possession of the password. So giving them the password basically is confessing to ownership of the contents of the encrypted hard drive.
About three years ago in Florida arrested a young guy. He refused to give the password to his phone. He spent 10 days in jail, still refused. He was released because of lack of evidence.
I was under the impression that SCOTUS already ruled that passcodes and PINs on electronic devices were no different than the combination to a safe, which has already been established as protected. My response would be I'll be happy to unlock my phone for you in exchange for blanket state and federal immunity for any and all crimes I may be accused of or committed since the day I was born until the moment I unlock the phone.
Wow yes I agree if it was an actual password I would agree but if they forcefully put your finger on the phone to read the fingerprint to unlock it that's something else.
@@krislarsen6546 that would be compelling you, while under their direct control. Any evidence gathered in such a way should be tossed out. Now if they did something different like took your fingerprints from your booking and used some means to use a facsimile to unlock your phone that would be a much grayer area. Anyway, everyone should learn how to disable touch/face id quickly on your phone.
I don’t use facial or fingerprint recognition on my phone. I do on my iPad, but I’m not carrying that around everywhere. There’s just too much on your phone, bank accounts, etc.
Many people don't use facial recognition or fingerprints because some in law enforcement can force you to open your phone or computer. Long passwords not related to you in any way (former address, phone number, pets name, parents name) that have letters & numbers & symbols is the most secure way.
@@mr.robinson1982 nope, a long phrase out of a book is better than anything else, numbers and symbols are of no use whatsoever. Even the guy who came up with the scheme of upper and lowercase, numbers and symbols has said it's stupid and he apologized to all who have to remember stupid passwords that are not secure anyway. The point is that you don't break passwords by guessing anymore, you bruteforce them with a computer doing the work, and computers make no distinction between letters, numbers and symbols, they are all the same.
@@noth606 While I agree that long phrases are the optimal way to go, I have to disagree that symbols are worthless. Attackers often use dictionary attacks which will attempt to brute force passwords that are using common words, and using a phrase out of a book is certainly going to be weak to an attack of that style. Which is why I'd suggest adding some symbols to whatever phrase you thought of, and it doesn't need to be completely random - just add some quotes or an extra dot, and you'll make the attackers life miserable. Example of random phrases: Stride across a vermilion bridge "Stride across a vermilion bridge?". also, using uncommon words will make dictionary attacks far more inefficient. So do flip across the dictionary to the Z section for a stronger password.
Just to be goofy when I was younger I once created an empty encrypted container and the password was a 64 digit base 36 number i calculated from hex oblivion item codes stripped out the zeros and replaced them with symbols...i was weird
@@noth606 You clearly have a terribly incomplete understanding of both math and general password security. As they say: You know just enough to be dangerous. Adding each extra set of chars(uppercase, numerals, symbols) is roughly the same as adding an extra char against brute force attack; a 10-20 fold increase in difficulty for the usual ~10 char password. Just using 3 extra symbols (ie capitalization and two numbers ) to replace 6 chars in a 20char phrase can multiply the difficulty by 20 billion. So one month vs 20 billion months of compute time. But nobody serious bothers to brute force a malicious attack even with offline data. (Semi-brute force is occationally used for non-malicious password recovery when some limiting parameters are still known.) Online passkeys with an 8char all lowercase minimum can be easily protected from brute force entry by a 1 second time delay between attempts. (3183 years on average and 6367 years worst case, add uppercase and numerals makes this 3.4M and 6.8M years. ) Of course this is all assuming a proper encryption algorithm has been selected. If the passphrased is hashed to 64bit key then no long phrase will make a difference because 64b can be readily brute forced in reasonable time by any modest modern workstation.
I went through this when a guy texting on his phone hit me. He told the police that I hit him and refused to give his phone to the police for them to prove he was indeed texting. Fortunately I had him on dashcam, so it didn't really matter, but it did drag things out. Had I not had video footage who knows how it would have played out.
until the word "dashcam", i had no idea you were talking about a road accident, lol. i thought the guy was just sitting outside a bar or something texting, and then just decided to clobber you.
@@SmittyAZ A tort claim is supposed to be decided on the legal standard of "preponderance of evidence", not "beyond reasonable doubt". Can I tell you with absolute certainty what either IS? Not really, but that's what a jury is supposed to decide, should the case go before them.
If the court is crooked enough to rule in favor of compelling you to give the cops your cellphone password, REFUSE TO GIVE THEM YOUR PASSWORD, ANYWAY!!!
@@just_passing_through You have the right to remain silent.. Anything that you say can and will be held against you in a court of law.. Note that they say ANYTHING YOU SAY CAN AND WILL BE HELD AGAINST YOU IN A COURT OF LAW. It does NOT say any thing about something will be used to prove your innocence.. When a police officer pulls you over and asks what you were doing, your response should be " I believe I was driving down the road, peaceful like and at or below the speed limit.. " and not "I was going 40 mph where the speed limit is 35 mph. Or better yet, answer "I don't know why you pulled me over.. " Law enforcement just loves admission of guilt. PS: I know you were being facetious...Many younger folks nowadays don't realize that they should practice their right to remain silent.
@@MrPir84free One minor correction, don't ever tell an officer "you don't know why they pulled you over". That gives the officer an excuse to say anything they want and it will (generally) stick.
@@MrPir84free I guess I have a different perspective living in Australia. For the most part Australian police are very well respected and trusted. That may have a lot to do with the fact that to be a police officer you have to attend a police academy for three years, not just have a military background, and you’re in (with a military mindset of shoot before you get shot hard wired in). I (and most Australians) would have no issue unlocking our phone if a police officer asked.
I am NOT a Lawyer, however, my understanding of Constitutional Law tells me the 4th Amendment states that without a Search Warrant, the Police may NOT look through your phone without you permission, WITH a Warrant, the 4th Amendment states they CAN look through your phone, but the 5th Amendment States they can NOT force you to unlock it, HOWEVER, that Warrant allows them to have the Tech. Team hack (or force the Phone Manufacturer to unlock it) the Passcode and open the phone to be Searched...
The fun thing about that is some years ago when they had a terrorist's cell phone and needed to get in but couldn't mess up the password or they'd clear the data. I never did hear what happened with that. I've never been much of a news guy 😂 but I definitely liked the fact that Apple was so impenetrable that even the government with their endless resources couldn't get in ☺️ I heard they wanted Apple to program backdoors into their phones and Apple was like "NOPE!" I should look that up and read about it now that it's been some years
It’s disturbing something like this could get precedent in Utah of all places. But, there is no way you should have to unlock your phone for anybody. That’s why I’ve never used fingerprint or facial ID. So many people have their whole lives on their phone, and innermost thoughts. Basically giving the cops the right to unlock your phone is more or less like giving them permission to read everything in your brain.
They don’t care what’s in your brain. They don’t even care about drugs usually. I personally don’t give a shit if they force a dude with CP or searches related to murder to unlock their phone.
The fact that hackers, phone engineers, recovery laboratories, and other alternative professionals exist, there should be zero excuse for the passcode of a phone or other digital device to not be protected under the 5th Amendment, regardless if Law Enforcement have a warrant for the phone, that warrant is solely for the seizure of the phone and not information contained in the mind of the individual who is separate entity from the phone. Instead, much like how police can send other crime scene evidence, drugs, weapons, etc, off to a lab for analysis, the police should be required to do the same with a phone or other digital device, send it off to a lab to be analyzed, password cracked, hacked, data decrypted, or whatever by professionals rather than the owner be forced to self-incriminate or be a witness against themselves and/or not retain their right to remain silent.
Modern full-disk encryption (present on: any machine with Windows 10 Pro that enables bitlocker, any Samsung phone since at least the S10, any iPhone of the last five years) makes it impossible to get at that data without huge resources to throw at it. Unless you're talking about a high-profile federal case, the resources to get at the data is out of reach of most state prosecutions. If there was an easier, legally unambiguous way to do these things then we wouldn't be seeing this mess.
@@zj6074 completely true, good encryption with a nontrivial password (and no software security bugs) will stop any hacker from entry without brute force guessing your code which for a phone will trigger its erasure. All these companies claiming to be able to get into your phone or computer without the password are hacking for software bugs to get in, while lots of bugs by nature exist there are far fewer that will get you in this way than before. Any master key would be hacked eventually and abused to the point of bankrupting the encryption company’s business, this would lead to no one using official encryption software. There are many secure standalone programs available today and writing your own isn’t too daunting if you have the right math and programming skills combined, so the genie has long left this bottle and we can’t forbid unapproved software from where it would matter for search warrants. There are no technological answers here, combination on a safe is the best analogy except that the equivalent of drilling through the lock is not an option in most cases.
You always have the option of erasing your phone when you're asked to unlock it and claim ignorance. Also, the military will tell you to commit your passwords to muscle memory to avoid having the information tortured out of you- useful for vets and active duty.
@@maxsdad538 the unlock code is in the individual's mind, just as a combination to a safe is and the latter enjoys case law providing protection. Worse, some crypto systems offer duress codes, which wipe the unit securely when the duress code is entered.
A plumber friend of mine had a related thing happen to him last week that went a step further. His teenaged son posted something particularly stupid to social media (I think twitter?) and the cops showed up at the family home. The cops had FULL ACCESS to the child’s phone from their iPad. No consent had been given and no passwords shared. My friend was shocked that the cops could do this. Pinellas County, Florida March 2022.
This really depends what kind of security they had set up and what kind of back doors apple have set up. Its free game if they can get in without forcing you to do anything. Biometrics aside
get rid of anything Iphone, Ipad, Ipod, all contain Pegasus 2, its how they were able to instantly get into the kids Ipad, Pegasus 2 can instantly without your permission or knowledge, track your location, turn on yur mic, turn on yur camera, send receive code, even if you remove the battery.
Keep in mind that there is a difference in how your phone is locked. If you lock it with facial ID then they could point the phone at you to gain entry, same for finger scanner where they could force your finger on the phone. My suggestion is if you have sensitive data to only have a passcode ID (PIN) and even if you were ordered to give up the pin, you could simply forget the pin. No law that I am aware of states it is unlawful to forget something. I would also have the phone wipe after 10 bad attempts enabled.
This would be like the police obtaining a warrant and searching your home for incriminating evidence. They do not find the evidence. They could then ask you where the evidence was since they did not find it (too well hidden). You would be forced to show them where the evidence was, leading to your prosecution. It will be interesting to see how the state supreme court handles this one.
Exactly, no court, in the states should ever hold that a person give up what is in their head, … or hell there would not be anyone to rule over as they would all get the death sentence, …
Thank you Steve! I've been looking for this particular and most reasonable application of the 5th amendment. I know someone who was just a passenger in a car that had been pulled over for a traffic infraction, and the police told the passenger he had to give up his cell phone and password. He did not. The only thing that saved it was a supervisor showing up and allowing them to be on their way without opening their cell phones.
@@robert5 He never thought he would be the victim of some cop fishing expedition. Neither did I! Some really horrible cops use fear of the police because they are sadistic bastards that like to make people miserable. I wonder how many people have given in to this kind of cop bullshit?
@@gregorylewis8471 I remember reading of a rancher in texas that erected a huge billboard that told people of some of their basic rights. The police there DID NOT like that. It seems that most police count on people not understanding and exercising those rights.
@@jum5238 You do have to wonder why you need a billboard. They have cops come and talk to schools. Civics classes should also invite civil rights attorneys to explain what your rights actually are. More speech is always better. The cops are welcome, but so are the CR attorneys.
@@robert5 I do that daring the cop to say something when I set off the metal detectors at the court house to vote. You don't want me armed in the court house, move the polling machines.
The understanding I took back when I researched biometric security and how it intersects with law is that a password is information known ideally only to you, but its something in your mind that you have to verbalize yourself. If its written down and they find it well thats something OUTSIDE your mind... but the research I found suggested that you cannot be compelled to speak or write a password, they (the police) have to find it out themselves through other means. Interestingly, the information I found suggested that biometrics (fingerprints, faceprint, iris, whatever) are things that can be found or collected without you saying or doing anything and thus can be compelled from you.
I agree, this is essentially what I understood in my readings over the years. The password is in my mind, and I don't have to give it up if it will incriminate me. It one of the reasons I don't use fingerprint unlock on my phone.
That's why I don't use anything that employs biometrics. A 17 digit password of mixed letters and numbers should suffice. Let them try to figure it out.
Need 3 level security. Facial Rec, thumbprint, and lastly, a spoken "password". You could go 4 level by adding a 9 digit/alphanumeric typed in password also. All it requires is someone to write a bug free app....
This is ultimately why I avoid biometric mechanisms for my phone. The Supreme Court of the United States ruled a while back that you could be forced to provide biomedical access but you cannot be forced to provide the information needed for a password.
They did because our Supreme Court are too old and can't grasp technology most things on our phone isn't even on our phone. A warrant to unlock a phone isn't a warrant to access a server for emails it's a problem what if it accesses my own server in my home?
Wasn't there a famous case some years ago in which after long drawn out proceedings a lady was ordered by a court to provide her password to the FBI or some-such at which point she claimed she had forgotten it. The FBI then ended up suing Apple to try and compel them to decrypt the device and Apple refused... subsequently the FBI was able to do it themselves eliminating their need for the password. Not sure what happened to the original lady.
On top of the fact that a warrant would only cover the seizure of the phone, not the password, it still falls under invasion of privacy for them to bypass the password in any way, shape, or form. I would say the same for a warrant to search the home, they should still have a requirement to need the homeowner to be there to choose whether or not to let them in. Invasion of Privacy really needs to be made a bigger deal of in so many cases. And, in the case of rental properties, it would technically fall under the landlord, not the renter, I would feel.
Great episode and great question! I also had a question: Do US citizens have the right to confirm the identity of a police officer before complying with them? If police stop me on the street or pull me over, I want to be able to confirm they are actually a police officer and not an impersonator trying to rob or exploit me.
Impersonators are usually thwarted by asking for a supervisor. This is not foolproof though in cases where the impersonator is working with other impersonators.
@ Offlineable Department policy requires them to identify and some states it is law (should be all states ) upon request must show state issued ids I’m any case stop in a well lit populated areas and always record
From the officer's perspective -- which is how courts will analyze excessive use of force complaints -- they do not need your consent and do not need to spend time convincing you they're legitimate. If you don't obey the order, they can escalate. Whether or not you catch a criminal charge for not obeying a police order is going to be taken from your perspective. If it was reasonable to doubt that they were legitimate, you would in theory have a defense to a resisting charge. I know that doesn't solve the problem. The answer to your question works out to "no you do not have the right to confirm the identity of a police officer giving you an order." And US citizenship has nothing to do with it -- though I know what you mean by asking the question that way. But the same rule applies to everyone, from US citizens to resident aliens to undocumented. You can only disobey the order if they're not cops. And you wont' know they're not cops until you disobey the order and end up charged with resisting arrest.
For those that are concerned, one trick the police might pull is to ask if you'd like to make a phone call such as to a lawyer. After you make your call they take your phone away before you can lock it again. I believe this happened to Project Veritas during their recent FBI raid issue. It's about enough to make one consider having a landline again.
If they have a warrant, then that is just good police work. Otherwise it is a civil rights violation. Upon request they should be required to offer you an independent means of contacting your lawyer (their phone).
@ostrich67 if you want to go on like that, it's best to bring the receipts. Give me at least a solid example that isn't splitting hairs like FB fact checkers.
This would be akin to law enforcement showing up at your home with a search warrant and demanding you *TELL THEM* where to find the evidence they're looking for.
I want to say it's a hard no, the reason why is that search warrants are typically limited to a scope of where they can look for specified pieces of evidence. Like if the police believe you are running a meth lab in your shed so they get a warrant for your shed but go into your basement. If LEO is interested in your text messages, what's keeping them from searching your pictures, emails, pdf tax history, social media history and discussions etc...? We can say that anything find would be inadmissible but it wouldn't be a deterrent from being used in coercive interrogations or other pressures, simply because you are still giving them access to far more than what they are permitted to have. Then as technology advances with things like facial recognition, retinal scanning, and let's say at some point your national ID must be linked to all of your activities including a transponder that links to your phone that has access to your billing, social media, clients private info, proprietary employment secrets...the state wouldn't even need your permission to gain access to things. Your right to privacy would only apply to private citizens and not the state, while I believe your right to privacy applies specifically to the state. I know I went down a conspiracy theory rabbit hole, but that's where things like this lead. The slippery slope is only a fallacy in name, since everytime the state mealy mouths it's way around an explicit constitutional right they say "well but they didn't mean this." Let's regard the phone as a safe where one keeps all of their important stuff according the framers, and a warrant grants them access to the safe to find evidence of merchant fraud but they also found a manuscript expressing your displeasure with the local jurisdiction you're being prosecuted in with names of others that share your views...what then? Do you trust the state to just ignore your criticism? Since it was part of the scope of the search warrant but not relevant to the investigation does it get ignored, destroyed or preserved for the sake of accuracy and "transparency" where it can become public record after a set amount of time? The question itself of what is a cell phone and what function does it serve for the individual and in society is a deep and dangerous question that I don't trust the state to make because the state will 99% of the time rule in it's own favour. Maybe in ten years after we have three new justices can we ask SCOTUS that question, but I don't trust the ones we have now. They're too old and too out of touch and roo concerned of the proper use of an oxford comma.
@@ajwilson605 But that just makes the "Patriot Act" another step in government's continued grab for power, not even the first step, hardly a cause to say "all thanks to the 'Patriot Act.'"
There is always a chance that there is nothing on the phone that would work against you for the crime they are trying to convict you of, but there may be evidence of another crime that was commited, and you should not be obliged to show evidence of a crime, they know nothing about.
Maybe there is evidence of no crime eve, but a lot of circumstantial blah blah that can be twisted by an over zealous prosecutor to make you look guilty. “ so 20 years ago. You thought/ your gem teacher was gay . Is that why he’s dead ? Did you kill him “
Simple answer, NO! Police have the option of asking for the information from the carrier and should be forced to do so. Otherwise police can and will manipulate the data when in their possession. The only information that CANNOT be altered or manipulated is the information from the carrier (AT&T, Verizon, T-Mobile, Sprint, Mint Mobile, etc) which can be obtained with a court order. Do NOT give your pass code information or unlock your phone for the police, they WILL alter it to incriminate you if necessary. Keep in mind police lie and WILL lie in court and are allowed to do so without ramifications. And BTW Steve, you don't have a man alive that can force my thumbprint physically, that's a dirtnap waiting to happen.
Exactly. It's like this one lawyer who keeps on telling people to don't ever talk alone with the police. Just zip it. The police can make something out of your words even if it's a stretch.
@@Rhaspun 'Serve and protect' is only a slogan to 'serve' their own purpose and 'protect' their own rears. Not all but most of our police are nothing more than criminals with badges. When the public loses more to police seizures than to robbery, and its backed up by every state in the union, then there is something seriously, seriously wrong with this country!!!
@SY-qg6qn Wrong, they can pull up whatever information they want, phone calls or text messages as long as there is a court order. That's why, like a wallet, I don't carry a mobile phone. My info is in memory.
Phones are easy to unlock once they've already been unlocked once after being powered on. If there's a chance the police are going to take your phone you need to power it off completely.
Many phones have a "lockdown" mode accessible from the power button. Generally speaking, it takes me less than 1 second to activate lockdown mode, and it disables fingerprint ID, just like a reboot would.
@@de_w8tam it's not about finger print id or facial recognition. Once the phone has been unlocked the first time from start up, there is software that police and government agencies use to easily unlock the phone again. Some PD will just ask for your phone and not even request a password. However if a phone hasn't been unlocked yet from being powered off, that software won't work. So the first thing you should do is power off your phone.
To find someone guilty they have to have no doubt your guilty. It's called " reasonable doubt " in a criminal trial. Just because someone has a locked phone doesn't prove they are guilty of a crime just because of implied guilt.
Actually technically what you described are two different things. Reasonable doubt does not mean "no doubt". It means that the doubt that you have must be reasonable, not based on something like the man on the moon could've done it etc.
@@aigtrader2984 Yeah, that magical word "reasonable" is used all over the legal system. It's job security for lawyers because it leaves room for argument. It garutees a different system for those who can afford to argue what's reasonable. Whats reasonable for some scares me. What would happen if we d make lawmakers create laws that are specifically
@@aigtrader2984 An example of reasonable could mean, he might of committed the crime but since he's black he probably did commit the crime so the decision is he's guilty because I believe it's reasonable.
A few years ago Police forced a Coworker of mine to use his thumbprint to access his phone. I've used a passcode ever since I heard that story. Wouldn't it be nice if government didn't break constitutional rights all the time.
This is closer to forcefully extracting knowledge than acting on warrants. Sure they should be able to try and hack into his phone, but the point at which you can force him to tell you something is the real issue. It probably sets a bad precedent imo. The biometrics im iffy on, because it seems close to say gathering DNA without concent from a suspect which is fine, like pulling saliva from a cup seems reasonable. But on the other hand imagine if they kept a log of retinal scans of yours or something to unlock your phone. Seems like an invasive practice
This reminds me of the Rittenhouse trial where the prosecution tried to imply that Kyle's silence was indicative of presumptive guilt, and then got reprimanded by the judge at least twice
yes, the law is an interpretation of the written word... most of the judges just do fogy way when needed.. lots of that fog is when the rich person is at the accused party... one law is for poor, middle class than a rich person...
@@deusvult6920 It is called life experience. I have served on a jury before and seen a close relative go through a trial that made no sense at all. And the "evidence" the prosecutors in both trials used was very shocking to me. For example, how can having a store loyalty card make one guilty of a crime? As a member of a jury that prosecutor lost all credibility to me. Also, the man in the video evidence was a much taller and heavier man than the one on trial. So not so much nonsense than seeing the sh!t for myself. In both cases these were lives being messed with, both the individual on trial and their families. Also the financial cost of going through a trial of a crime you are not guilty of... yeah, you could get a free court appointed attorney; but sometimes they are overwhelmed with other cases.
That's REALITY...DA's don't give one chit about guilt or innocence...All they care about is a CONVICTION; All the cops care about is finding more things to charge US with...
This reminds me of the truck driver who refused to help the DOT do a safety check on his truck, by refusing to operate the light switches, horn, etc. based on the 5th. He said he did not have to be a witness against himself, in the event something might be wrong with the truck.
It doesn't work for truck drivers as part of our getting licensed to drive in the first place we have to basically give up all rights of this nature. Is that fair? Maybe not.. but they'll never get rid of those restrictions.
@Collen Flarity Yes and the reason he was convicted was because he locked the truck. The judge said if he left the door open he would gave been found not guilty. I carry a spare remote and often leave my truck running and locked with my dog in it. If a cop wants me to get out that is also what I do and tell them I am just making sure my dog is safe.
Sadly, in the UK, they can force you to hand over passwords for stuff or you go to prison for 3 (or 5 in some circumstances like national security) years. This includes stuff like Facebook (or others) accounts iirc.
This entire discussion is insane. With all due respect to the legal profession, the fact that this is a question at all shows what is wrong with our justice system. Who actually WANTS to live in a society where the police can force you to talk, "or else!"?
I recall some Supreme Court rulings on this already and that ruling had a lot of discussion around how our phones have become an integral part of everyone's life and can reveal lots of information but here's my bigger point. To give someone the password to the phone, you have to speak. The fifth amendment is pretty spot on on the fact that you don't have to talk. They literally cannot make you open your mouth and say a word so for the life of me on a practical sense I don't see how they get around this on to regards, 1/5 amendment and two, practicality. If my phone has some crazy incriminating stuff on it then I'm certainly not going to open my mouth and allow a police officer to look at it. Send me to jail for contempt of court, let's go down that road but it's still gonna be less than what happens if they open the phone. So from a practical standpoint I don't see how they "force" anyone to open the phone. That being said, I can't see for the life of me how the prosecution can use that against them. They literally have no idea what's in that phone. Maybe he likes sending naked pictures to his girlfriend and doesn't want the prosecutors to see it. Who knows? But it's a guess and they are trying to argue to a jury that they could take a negative inference off of someone not giving them information? I don't see how this stands up
Not always true. About having to speak, I mean. If you use a pattern lock or a fingerprint scanner to unlock your device, you don't have to say anything. The latter technology is the least secure from a law enforcement perspective: they just grab your finger.
@@jameskaraganis2569 this was discussed in the video but not in my commentary. The purpose of this case, and the video, it's solely using your voice to transmit a pass code to police
@@Mikoshi700 I would need to cite on that because as a rule of thumb you can't hold someone in jail on contempt of court charges beyond the time they are reasonably expected to give up the information. Once it's clear that no term of confinement will do so, they have to let you go
Nice to get that info. There's another issue related with the same situation: The cop make's a search and finds a phone with the suspect. They suspect that the phone is stollen. Then, they say to the suspect to demonstrate that the phone belongs to him unlocking it. If he doesn't they consider that the phone is stollen. So we're on the midle of a difficult situation: you're arrested cos the phone may be is stollen, or you give them access to your phone that can incriminate you in other ways.
When it comes to biometrics, you can enable "lockdown mode" where the device will only unlock with the passcode. Due to having proprietary company data on my phone, I also have it set to factory reset after a number of failed attempts.
Only a certain select of my aps are accessible via biometric unlocking, to get access to my entire phone a pass code is needed. They have 5 attempts to unlock my phone and it factory resets and there is no warning it will reset.
Be careful. If they gain physical possession of the phone and can copy the NAND they will be able to mount it inside an emulator. The copy will still need the correct pass code, and it will still be wiped on failure, but they can mount as many copies as they want. A 4 digit numerical pass code only has 10,000 possible combinations so one could gain access within a weekend via this route if they have the correct equipment. That's why I don't even cross the border with an active phone. Instead I will use a program like titanium backup to make a full copy of it, encrypt that copy on my computer, wipe the phone and remove the SIM card, and then cross the border with a phone that has no data to compromise. Then after I'm through all I have to do is download the encrypted file from my server, decrypt it with my password, copy it onto a microSD card, and then everything will work exactly as it was before. Takes a bit more work to do it this way, but at least the security is significantly higher.
@@Elliandr a lot of phones these days have a hardware security chip that stores the keys nowadays. Still possible to dump it I’m sure but it is significantly harder.
@@tylerfricks7369 Let me put it this way : Do you know why the Nintendo Switch was so easy to hack? Because it was based on modern smart phone architecture. This allowed people to dump the NAND long before running a CFW. Yes, there were keys that tied the NAND dump to the console itself - that's why you can't use the NAND from one console in another - but the NAND dump allowed people to restore their system NAND (sys NAND) after making a mistake and then eventually run an emulated NAND (emuNAND) Later hardware revisions of the console tried to make this impossible, but all they could do is try to remove the button press signal achieved by using a jig to cross two wires in the rails and that was then bypassed by a minor hardware revision. After that Nintendo didn't have the ability to actually stop people from doing this so resorted to lawsuit to stop it. Everything that's been done to this console is based on research into smart phones in general. Regardless, people can now emulate a Switch instead of running it on Native hardware and while you can't just run your NAND in an emulator, it's only a matter of time because older console, emulators like the Dolphin Emulator running Nintendo Wii which also does this can run a NAND backup no problem despite having similar security. Now, if random geeks with too much time on their hands can do this to Android hardware what makes you think that the resources of the US Government can't? If the FBI can't do this it means they just haven't hired the right people yet.
I'm glad it was appealed. It fits right into the 5th amendment. It could be giving evidence against oneself. Let them figure it out. Using YOUR finger should also not be allowed because you are compelling them to participate in your own prosecution. I was a juror on a case and we were instructed that we could not use whether they testified or not as implying guilt or innocence.
The thing with fingerprint ID is that you are already compelled to provide fingerprint data when you're arrested. Which is why it's considered a very insecure method of securing your phone, it's not difficult to recreate a fingerprint ID to bypass a fingerprint scanner.
@@inibrius5380 it should be illegal for them to go into your phone without a warrant and using your fingerprints to access your phone without your permission or a warrant seems to be a good way for a lawsuit to begin.
@@julietteoscaralphanovember2223 Yes, they have to have a warrant to get your fingerprint. The 5th amendment means they can not get a warrant to compel you to TELL them something, whether that be where the body is buried, or what your password is.
If the police demanded access to his written records without a warrant to look for evidence of wrongdoing, there'd be no question that simply grabbing them and making copies to be examined for evidence would be deemed an unlawful search and seizure. How is the electronic equivalent any different?
"I'm so sorry your honor. I understand that you've compelled me to give up the password, but due to the stress of the entire situation, I seem to have completely forgotten the password. Guess? Oh no, your honor. The phone has a limited number of attempts before it locks down and must be wiped. I don't want to be responsible for that happening." "We don't believe you." "But you cannot hold me in contempt for not remembering." :D
"Actually, we can hold you in contempt for violating a court order, even if you claim that you forgot. 30 days in county. We'll ask again in a month if you still can't remember."
I feel like having to give up the password to your cellphone is similar to having to give up the location of your diary. Both have a high chance of containing something incriminating that was to be completely private, but not giving it up doesn't mean that it contains something like that. They can look for another way to get to it, but you can't be compelled to help them do so
That's not really what it's like. A diary is physical evidence, and you can be compelled to procure it, just like you can be compelled to give them your phone. It's more like you wrote your diary in code and you refuse to tell them how to decode it.
Passcodes are information known only to the owner, so not forcible to be revealed. As far as people at the border, the rule is withing 100 miles of the border is equal to being at the border, no matter if/how recently you crossed the border, and I've heard ~2/3 of the US population lives withing that area, meaning "at the border" basically negates 2/3 of the US populations Constitutional protections.
"To participate in your own prosecution" is similar to what some States do in regard to field sobriety tests. These States impose penalties for refusing to do their work for them[proving yourself intoxicated].
A little difference: Being able to drive a car is a privilege and not a right. You have to go through a process and agree to the rules to get a Drivers License. You have already agreed to these rules if you have a Drivers License.
@@perryallan3524 I got stopped some years ago for DWI. I stated "I would like to have my Attorney present" and did not take any tests. At trial,there was no direct evidence to present,so the Judge declared me acquitted. He then excoriated the Police,ADA and declared my license restored and any tickets to be revoked.
As long as there is any immunity for judges and other public servants and no personal accountability for their violations, rights are essentially meaningless as the violation continues until resolved. Until the penalties for these violations by public servants are prosecuted and sentenced as felonies, the crime will flourish.
I was a part-time, small-town cop for about 20 years. I do try to pay some attention to LE-related court decisions. I was sure this had already been decided: passwords/passcodes are protected, finger prints and/or facial recognition, not much. I would swear I remember hearing/reading about that in the last few years!
There have been cases, but as near as I can tell the problem is a lack of cases at the federal level, and SCOTUS in particular. The NJ supreme court has ruled that the 5th doesn't apply, and a FL appellate court has ruled that it does. I haven't found any federal court rulings, which is surprising considering how long passcodes have been used on phones.
@@suedenim9208 NJ case is not that straightforward. The precedent involves a cellphone containing data that the prosecutor already knows, so it follows the doctrine of “foregone conclusion”. If the prosecutor has no idea whether the phone contains incriminating evidence, then it’s not a foregone conclusion, so fifth amendment protection applies.
Well damn Steve, sounds like you just made a valid argument against field sobriety tests as well, which are just as much self incrimination if you are indeed intoxicated
The thing with those is that you can refuse to take the sobriety test, and this can not be used as proof that you were driving under the influence, but the state can then refuse to grant you a driver's license even though you are not guilty of a crime.
@@phillipsusi1791 Bingo! Many states have "implied consent" statutes that link the privilege of driving on public roads to consent to submit to a test of breath, blood, or urine for intoxicants and the concentration thereof. Failure to complete a test or produce the needed specimen can result in suspension or revocation of driving privileges as 'administrative actions' regardless of any subsequent finding of guilt at trial.
Search warrants should have to be information specific. But if they get access to your smart phone all the information on that phone is now accessible and not protected. This goes against all reasonable rights to privacy.
Generally speaking most of the courts have ruled that fingerprint or facial recognition ID locks are not protected but some courts have even protected those types of locks on phones computers etc but most have chosen to say they are not protected. Actual alphanumerical passcodes are almost always protected but there is an exception and he briefly mentioned it and that’s been at international border crossings. Another example that might not be protected is if you have a computer with a separate random code generator that is constantly creating a new password every so often and you need the physical device/ key to unlock the computer, they can get a warrant for that device/ key because it’s not a password you carry in your mind but those type of security devices are kinda rare outside of certain professional needs so situations involving them are probably rare.
This is exactly WHY I would never do Facial Recognition or Thumb Print as a password. They (Cops) can’t make you talk. Try to be WISE and never think the Police are there for the benefit of the Citizen’s.
I once arrived at my former office and the cops were there, apparently one of my colleagues had gotten involved in some criminal activity. They asked me for the password to my computer and I told them "I forgot." They didn't believe me, but honestly, I had at that point forgotten the password to my PC that I use every day. I guess I was in shock. They kept pushing but couldn't do anything about it and neither could I. Eventually, they let it go. Afterwards, our IT manager recovered the PC from the BitLocker codes as I still couldn't remember the password.
PRO TIP: When crossing an international border REMOVE ANY BIOMETRIC features. I believe they CAN make you put your finger on the fingerprint reader, so if you turn that (and things like Face Unlock) off, then PIN is the only option...and "I don't remember the PIN, sir" is still an option. Granted, I've had border guards ask me to enter my PIN and I did because I wanted to get into their country (in this case Canada), and if I refused I'm pretty sure they would have told me to head back home.
They can seize the phone/computer in that case. IIRC there was a case years ago where the Border areas have a weird loophole where they can't force you to unlock the phone but can impound it, and hold on till you do unlock it.
That's what I do. I have one phone that I use for traveling. If they want to seize the phone to cause inconvenience to me then it won't matter. That's why they will seize your phone since they know that most people have a lot of their daily life tied up in their phone.
I've always felt that laws requiring people to identify themselves when arrested or detained violate the same principle... yet SCOTUS specifically allowed those in Terry v. Ohio and subsequent rulings. Consider; Random person stopped in the vicinity of a crime with nothing apparently tying them to it. If they aren't compelled to do anything then there is no reason to hold them and they are allowed to go about their way. Forced to identify themselves (or go to jail for failing to do so)... oh look at that, they have the same last name as the victim OR they've been arrested for the same crime before OR they have an outstanding warrant. Suddenly, there is more reason to look into them or even arrest them on the spot. They have clearly been compelled to be a witness against themselves / participate in their own prosecution. You have the right to remain silent... yet you have to identify yourself... so no, you DON'T have the right to remain silent. It is an inherent contradiction... and opens the door for more such 'minor' exceptions that eat away at these fundamental principles.
Except the Constitution never mentions the words, "remain silent." That was made up by SCOTUS in 1966 in the terrible Miranda case. Anyway, the point of remaining silent in the Fifth Amendment context is to not incriminate oneself, not some general right not to speak. If I say my name, that isn't incriminating myself (saying a password could be, because it suggests ownership of a device that may have criminal evidence in it). Terry v Ohio was a Fourth Amendment case anyway, the issue being, can the police detain you long enough to determine if you are engaged in criminal activity if they have reasonable suspicion? I doubt the Framers would say that police need a warrant to walk up to you and ask you a question if they suspect criminal activity. BTW I do think the stop and ID laws are BS, but this is 4th Amendment not 5th. And it's up to the individual states to pass such laws (unfortunately). My state (CA) doesn't have one.
@@uclajd Yes, Terry v. Ohio examined a 4th amendment question... but they came up with an answer which violates the 5th amendment. Providing your name can and frequently DOES amount to being a witness against yourself. Indeed, that's the whole reason police are SO very determined to ID anyone they come into contact with. It is specifically to check for warrants, arrest history, and anything else they can use to make an arrest. Also, various forms of the 'right to remain silent' LONG predate Miranda.... and indeed the United States itself. The primary innovation of Miranda was that the police must NOTIFY people of this right.
@@ConradDunkerson Again the Constitution is silent on "remain silent." The issue is whether the speech is testimonial, not actually speaking. And no identifying oneself is not testimonial. And Miranda was a travesty, the idea that the police have to be your advocates in the field (but only part of 5th and part of 6th, no 4th at all). Ludicrous!
When a bookie gets caught, and his encrypted ledgers seized, can the police compel the bookie to give the cypher key that would convert the ledgers into readable form? I'd have to believe they absolutely cannot legally compel the accused to provide that information. Even as a bystander, I have zero duty to help the police investigate a damn thing.
Actually, you do. If you are a landlord and have a key to your tenant's apartment, they can get a warrant to compel you to unlock the door. Likewise if you are a bank and they have a safe deposit box in your vault.. a warrant can compel the bank to grant access to the box.
@@phillipsusi1791 So they said "as a bystander" they don't have to do anything and you reply saying they do and then give examples where they're not a bystander and think you've proven something?
@@jarodmorris611 Ok, so the meaning of the word bystander in this context isn't really clear. I assumed he meant anyone other than the accused, which would apply to both their landlord and their bank. You seem to think the OP meant something else?
I feel like both sides have missed a serious point, and I'm concerned that Utah's courts are going to rule in a way that causes problems soon. There's already a good amount of behavior and physiological research that has shown a correlation between being cut off from your smartphone (or other electronic data storage device) as causing a behavior and physiological shift in a person that is consistent with brain damage and/or amputation. The evidence has been strong enough that there's a few studies happening right now to see if adding in these devices to people who have experienced those injuries can help address some of their symptoms. Which implies that there needs to be a very real consideration by the courts that data stored on those types of devices should be considered as part of our physical being because we literally think of them that way and on a biological level. And for a real-world example... A friend of mine had an electronic device implanted in her to help with neural damage sustained during a severe car crash several years ago. It's physically inside her body at all times, cannot be removed without invasive surgery, and prior to its installation she was confirmed to be disabled as a result of the injuries this device prevents. Can a court legally compel her to provide (or otherwise take) data from this device against her wishes? Wouldn't that be explicitly a violation of the 5th Amendment's clause about being compelled to witness against yourself? If she cannot be compelled, because it is a required part of her physiological self to the point she is legally disabled without it, wouldn't this data regarding electronic storage devices imply there should be a similar consideration?
I think you went a bit too far there. Making someone not have their stupid little distraction device in their hands to swipe on 24/7 isn't an amputation, and if they are going to have a mental breakdown just because they can't play with a gadget maybe thats proof they need to step back from it and actually look around them at the real world instead of on a screen. Humans made it thousands of years without this shit, somehow only young people in that last few years cannot exist without a 5G umbilical cord. Thats pathetic. A cellphone is a luxury, not a necessity. Trying to draw parallels between one and a medical implant which is a machine designed to treat a medical condition is, as any girl taking a ten inch dick for the first time can tell you, a bit of a stretch to say the least.
Police can't remove a bullet Winston v. Lee. Beyond blood draws the court has been very protective of rights when it comes to something invasive. Note the guy who died during a forced blood draw recently.
Hell, there is so little on my phone I don't even lock it. That being said, I'll be MORE than happy to file a civil rights violation suit against any cop that takes it off my person and goes through it, as a matter if principal. No permission, no warrant, and I don't give a S if there wasn't anything incriminating in it, he's in for a world of hurt.
I remember a few years ago in a course in computer science. Funnally enough at the University of Utah. The question possed to the prof was about the fbi wanting apple to get into a phone, but Apple refused. Artical: Apple refuses government's request to unlock Pensacola shooting suspect's iPhones. The prof told the class in his opinion. that if you are asked by the police to give your password to your phone that it wouldn't be illegal as long as you remain silent, but if you used face recognition or figure print then they could use those to access your phone without you speaking, so it would not be illegal for use of those. The logic behind it was that you are not compelled to speak, but for face they could hold the phone up to get it to unlock. Similar for a finger, but lift hand and place it on sensor.
That is the most 'accepted' chain of thought, but it still has not been fully vetted by the courts and until it has, we do not know where the limits will be made.
I have a password and a fingerprint reader on my phone. I one dropped the phone, and a rock happened to hit right in the fingerprint reader, rendering it useless. (you can't really see it unless you look VERY closely). At first I was upset, but then saw prior cases where the police grabbed someone's finger and pressed it to the phone and it was found legal to unlock, and was grateful it happened to hit there. Not that I'm doing anything wrong, but it's nice to have divine providence in helping preserve my rights. :-)
Only during a border search by CBP or HSI are you required to open your phone(under border search authority which is much more lenient than Title IV). But in recent years, it is much harder to get approval to "dump" a phone by CBP supervisors(Meaning your phone data like pics and texts will be downloaded). If you do NOT give your password, your phone might be seized and possibly brute-forced. Eventually, you'll get it back.. Eventually
You should not have to verbalize or write down or otherwise communicate your passwords. I can't see how this requirement from the government in a criminal matter could ever be considered as something that is not within the scope of the 5th amendment. This is something that should be as plain as day. The fact that some courts disagree or might disagree is very very sad and scary, especially in this age of big brother.
This is also against the 1st amendment freedom of speech includes freedom from compelled speech. I believe other courts have ruled on this that pressing a button on a phone is considered speech and is thus protected. In addition, there is no need for the prosecution since they have access to resources that can bypass or overcome passcodes. Since they have the ability to overcome passcodes I find it hard to believe that a court is going to expand their powers in such a slippery slope situation.
Another consideration about people who flee cops would be the three strikes laws in many states. This creates a situation where a person could have 2 strikes and then get a 3rd strike and go away for a long time over a minor thing like a marijuana cigarette. As far as unlocking phones, this gets worse with face ID and fingerprint unlock. They can just shove your finger on the phone, or put the phone in your face.
The interesting thing is that my iPhone doesn't use a fingerprint, but facial recognition - but if I reboot my iPhone, the facial recognition won't work until I put in my pass-code. I wonder if Apple did this in order to defeat the method you mentioned; recreating the fingerprint or face won't work anymore. You have to have the pass-code if the phone is off. Of course, most cell phones are left on all the time, so there's that.
I am aware that this is very serious. But, those of us with a sense of humor I wanted to tell something that happened to our daughter a few years ago. While she and her boyfriend were out one time he got pulled over for speeding. After the officer pulled them over and her boyfriend rolled down his window a bug flew in the car. Our daughter has always been terrified of bugs or any kind. The first thing she did was bolt out of the car and started screaming and running as fast as she could trying to get away from that poor bug. The officer asked her boyfriend what was going on ,and asked if she was alright. He said, "She's just terrified of bugs." They both laughed and the officer let him go so that he could catch up with her while she continued running down the road. lol! I thought someone here with a good sense of humor could use a laugh.
I’ve always said that even though Face ID and finger print locks are very handy, it’s way too easy to force that open if they have you present. Not just the cops. If you’re someone who travels in less friendly areas of the world, a kidnapper could easily force such a thing.
Not sure what phone you have. I use both facial and fingerprint ID on my phone(a Samsung). Thing is, if just fingerprint is enabled it's every 3 days, with facial recognition on it is every 24hr biometric login is completely disabled. It's super easy to enable again, you just have to enter your password and it all works again. So if they seize your phone and you have facial recognition and fingerprint ID enabled, they have at a maximum, 24 hours to have that warrant and force you to put your finger on it or whatever before those login options are disabled. Personally I like that it got setup like that.
@@kurtwetzel154 that's what he said, he said a password is more secure than face/fingerprint. You said face/fingerprint is less secure than password. That's exact same thing, you agree with each other.
I see this come up now and then and have to wonder, what if someone pretends to comply and gives them an incorrect password? Swears that it is correct, maybe even goes so far as to insinuate or claim that the phone has been tampered with when it doesn't work?
That is very interesting! So when a person gives a testimony at their own trial and they are "compelled" to speak the truth and nothing but the truth that is because they have volunteered to give testimony and therefor given up a portion of their 5th amendment right? I guess I never really thought about it but assumed they could ask you what happened and then get you for perjury for lying or omitting the truth. Thanks for the video!
First off, I love your videos! Great explanation of the law in layman's terms. The part you explain about the basic giving up the passcode, how it can be unconstitutional and requesting to basically tell law enforcement whats in your mind with regards to the passcode. Well my main concern would be the violation of mine and others privacy rights. Some of us have intimate videos/photos that might be of the person that owns the phone or device. Also might have images of a spouse or boy/girlfriend. Thats where they would be violating others privacy rights. There could be financial status information thats none of thier business also. 🤔 If a law enforcement officer asked me to give a passcode, that would be a major concern for me and any consenting adults that let me have their photos/videos with the trust that nobody is to view them. This issue has been raised with police getting whats called a cell tower dump. They can put a request in to a judge for a block of time that a crime occurred and I imagine with enough probable cause that the police believe a phone call/text went through a particular cell tower, the judge grants them the warrant. Here's the problem, I'm sure you've heard of it. The police now have permission to go through every single call/text that went through that tower. If its in a metro area, that can be thousands of calls and texts. They only are concerned with maybe one incriminating call. Citizens against this activity have been trying to stop this. Some people have this odd belief that they are law enforcement so they have the right to veiw innocent intimate photos/videos of people. In reality, they aren't any different than any other human being. I live in a small town policed by county Sheriffs. Everyone knows the Sheriffs here, items of this nature could be rather embarrassing. You'd think with all the technology that they could pin the call down to a single number. Maybe they have by now, it was a few years ago I read about this privacy issue. I think they can, it might be an inside loophole not intentionally created with the system. I've known of a gal that had the police stop at her house demanding her cellphone. They didn't ask for passcode because its Android and the police have cyber techs that can crack into them. They put her phone in an evidence bag, gave her a property receipt. She did it without incident. This all had to do with her boyfriend being in a car going through state line and they found drugs in door panel. Her boyfriend was a passenger but was taken into custody also. The cops wanted her phone probably to see if and how much involvement he had with the driver "running drugs". Just by conversations like he had knowledge beforehand of his arrest. I assume he played, "I didn't know the car was loaded with drugs!" Lol🤣 Again great videos !
How dare I not give up EVERYTHING to the immature cops who WILL dive through my entire life, not just my messages or other single thing they want. They want your whole life, everything. Turn off finger and face and have a min of 6-8 digit pin or pattern
I lost my passcode in an unfortunate boating accident. Funny thing is I have a password that only activates when I take out, replace, or swap the SIM card and I genuinely can not remember what that code is. So if I knew I was going to be arrested it would take about 10 seconds for me to make sure they had to use a different method to access the information on my phone.
*Let's go out on a limb.* *So... if I'm at a place where an active shooter is letting loose, people fighting and I start running away because I don't want to get shot, hurt, etc. law enforcement can legally conclude that me and anyone else running must/may be involved in what was happening because only guilty people would run from a crime scene.* 🤔
No, that would be asinine. No jury would buy it, no judge would be dumb enough to allow it and no prosecutor would do that. Just because they can do it, doesn't mean they will. Now if you also happened to be carrying a rifle, wearing a ski mask and shouting Let's Go Brandon! as you were running away from the scene, I'm sure the police would use that as justification for shooting you in the back.
To officers responding to such a situation, EVERYONE is a potential threat until determined otherwise. "Legally conclude" is what courts, not cops, do. Cops only need to have probable cause.
If there's information on the phone that would convict someone of a serious crime, I think they'd rather be held in contempt than give up the code. Also, this is why passcodes are better than facial recognition if security is a concern.
I don’t recall the specific case but I recall a case from a law class which stated a person may walk away from the police and may also run as running was simply walking fast. This may not have been a Supreme Court case but it may have been a NYS Appeals case or one of the 2 federal districts that cover NY. I have seen cases where courts have upheld biometric opening of phones, i.e. Touch ID and Face ID, but which specifically preclude pins and passwords. I strongly am against law enforcement accessing my phone, regardless of guilt or innocence, as there is simply too much data on the phone; said data should be owned and controlled by the phone owner. I took a training with the Secret Service regarding cyber security, smart devices, and social media some years back and was amazed at just how much data is out there both on devices and in the ethos; one of the take always was a sniffer, a small USB flash drive that when inserted into a computer would automatically download massive amounts of hidden data. The only reason I took the training was because our sex crimes officer wasn’t at all tech savvy and while I never used the sniffer I did use the knowledge acquired regarding phones, Facebook, and Twitter which came in quite handy during investigations. After the training I upped my personal cyber security and practices as I want aware of just how much data was out there, and that was with me being careful, or what I thought was careful before. As a side not I’m not letting the police into my house or vehicle without a warrant, I’m not submitting to an interrogation without an attorney, and I’m not “going to the station” unless and until I’m under arrest, at least in a formal; I tell my family the same thing because while I know most LEOs are good there are bad ones out there and once you’re in the “system” you’re never truly out.
For this exact reason I do not have facial recognition set on my phone. If the police take it (as they will if they detain you) they cannot hold it to my face to open the phone. A smooth trick is carry a photo in your wallet of someone else. If you forget your password, code you can show the picture in the wallet to unlock the phone. Just make sure it is a clear and neat photo.
My plan has always been to disable face ID by clicking the power button five times and then playing dumb and claim I don't know why it won't work and that I forgot my passcode. I doubt I'll ever need to though and I have no idea if it would work.
My phone has a a feature to disable biometrics called "lockdown mode", and is accessed via two presses. I imagine I'll lock it if I'm every pulled over or otherwise expect an encounter with police. It also auto-engages every few days.
I wouldn't give cops the combination to my safe. Why would I give them the password for my phone?
When did our legal system go from "innocent until proven guilty" to "presumed guilty?"
From my experience over the last 30+ years I have no faith the legal system.
Innocent until proven guilty is what they taught you in middle school. In the real word it's the other way around. You know 'the cops wouldn't arrest you if you didn't do it' and other such crap.
It's been technically innocent untill proven guilty has been the kay of the land since the early part of the 20th century only to get ramped up in the 70s
Totally agree with Jay. Keep or install to floorboard (screwed into it-not able to remove) floor safe and keep phone locked in there if stopped by police. No phone to unlock if you don't have it with you or in your presence.
@@cesterly4668 Weld that shizzle!
When we allowed our government the power to teach socialism.
During a criminal trial in my area the judge told the jury they could assume guilt when the defendant didn't testify. Higher courts threw out that conviction faster than a speeding bullet.
That judge committed sedition and treason telling them that.....
I wonder would happen if you give them the wrong password enough to make the phone wipe itself.
Yea because that judge was clearly not following the law.
@@6StimuL84 that's neither sedition nor treason. It's a violation of 5th amendment rights.
@@billyyank5807 A violation of the 5th is treason ignoramus..... Both in English and using the UNITED STATES definition.
I have to remember the GM Executive who took notes at their board meetings. He wrote in very small cursive lettering which only he could read. The ruling was that he had complied with the order to turn over all his notes but could not be compelled to read back what he had written, at which point the prosecution's case fell apart since nobody was talking and no other evidence of wrongdoing existed. GM then implemented a rule of there being no recordings or notes being taken at their Board Meetings.
The real problem here is that we've become a "Police State" where the Government and the people in it are immune from being held personally responsible for any knowingly wrongful actions they take. While some level of qualified immunity is necessary, that has to be held to a minimal level, with successful prosecutions for such acts ending with equal sentences to those which would be given to an average person doing the same thing, or the citizens will no longer be free. A government which cannot be held responsible will not act responsibly because it's not in their best interest to do so.
The Patriot Act & NDDA?¿
@@americafirst6492 The entire group of laws known as the "Patriot Acts" which were the polar opposite of their name. And numerous laws passed hence. And numerous Court rulings since then too which clearly run against the intentions of our Nation's Founders. It's no longer justice, but "just us", and the citizen/subjects be damned.
P RO, 👍
Bu
"Equal"? I would argue that them doing the act while being in a position of power like that should make it "greater".
I followed an IT guy who would encrypt his entire hard drive on his laptop. He modified the code for the encryption software so instead of saying “username” is said “Hard drive failure detected, would you like to reformat?” If customs asked to unlock his laptop he just showed them,”sorry, the hard drive must have been damaged in transit.” As soon as he gets through he can log into the encryption software and he was good to go.
Genius!
I want that for my phone
that works well as long as its used that way. If its a device that gets seized in a criminal investigation, they would likely figure out pretty quick that the hard drive is fine.
@@ZE0XE0
It's still encrypted and without entering the password to decrypt the contents on-the-fly, the data is useless. Attempting to force break the contents can take many years, and in some cases decades or centuries, so the contents would be useless.
@@ZE0XE0 that's fine. And 3 failed tries rewrites my entire hard drive 7 times. So good luck
You have the right to an attorney.
Next they are going to say "Oh, so you got an attorney? Clearly they are guilty. An innocent person would never get an attorney if they weren't guilty."
Sadly enough, a lot of police proceedural shows certainly frame it this way. And you have to wonder how many jurors hear the defendant got an attorney and immediately thought about all those crime shows they watched...
@@nemothesurvivor From all the crime shows I have watched, I have determined that the one that is guilty is the one that is most cooperative and friendly. The belligerent asshole that lawyers up is always the red herring.
@@wingracer1614 things must've changed. I know growing up that the theme was always "Oh no, they figured out I'm guilty. Let me ask for a lawyer." So it wouldn't be out of the question for modern takes of the genre to flip the script to keep people guessing.
Actually, MP, it's worse than that. The Supreme Fascists ruled a few years ago that remaining silent CAN be used against you in a court of law, as suggesting guilt!!
Their Police State bootlickery ruling says you must announce that you are exercising your right not to be a witness against yourself !!(the 5th)
The moment I encounter any cops, I announce that I'm exercising ALL MY CONSTITUTIONAL RIGHTS!! I go further and ask them if THEY understand my rights! And they F'Kn HATE it!
@@wingracer1614 right on👍!
There was a large study done about outcomes of interactions with cops. (Sorry, can't remember source) It found that the outcome (even fatal) didn't change whether you were overly cooperative, or overly uncooperative!
This is *EXACTLY* why i don't use fingerprint or facial recognition.
I use a password and i will never let law enforcement have it no matter what they say or do.
Nobody has a right to know what is inside my head.
Just using password is not enough. You need to encrypt the data or they can still lift it off your phone without a key.
Yeah... I'm struggling to think of how I can use my phone without fingerprint. AND just realized my computer should have encryption and a password even though I don't need that for security inside my own home.
@@taoliu3949Why are you so full of yourself that you think the government cares what you are talking about? That’s actually a kind of narcissism.
The good news is even if the fingerprint reader is enabled, most phones require the pin after a reboot or even after sitting for so long without being unlocked or if the fingerprint unlock fails so many times in a row.
So depending on how long it's been since they took the phone or if they let the phone go dead, the pin would be required regardless, you could also have only one finger programmed to the fingerprint reader so if they try to take your hand & force you to unlock it, you just put the wrong finger on the reader a few times in a row & it will be locked out & require the pin then.
My hands are often beat up from working on cars & the fingerprint reader fails half the time when I'm actually trying to unlock it requiring me to enter the pin.
Also you could claim you just forgot the pin.. I've actually had that happen before with a new phone & had to just stop thinking about it for a bit then the next day randomly remembered it again. I could see someone who is being questioned & is stressed could actually just forget it with everything going on.
@@V3DT The courts have ruled police can't force you to give up your pin. It's protected under the 5th amendment.
A good reason for someone not to unlock their phone for other people, even if they are a police officer or some other agent of the state, is possible tampering, for example transferring incriminating evidence onto the phone, such as pictures, audio files, etc.
If they are a human, they are capable of crime, so if you have the right to keep your devices inaccessible, do so for your own safety.
Exactly. If you ever give your info to police, you have to make a copy at the same time, so you can prove it when they plant stuff.
This video again emphasizes how important it is that each citizen stand up for all the rights under the Bill of Rights, for if we give up any one of those rights we will lose access to all of them.
then call your congressman and tell them no to any and all gun "regulations"
@@jpjones877
Congress does NOT care what you say unless you’re in the donor class.
@@jpjones877 the 2nd amendment literally uses the word "regulated" in it...
David rohrbaugh, a well regulated militia. Nothing in it about regulating gun ownership.
@@davidrohrbaugh7474
I’m a one man militia and I’m in full compliance with my regulations. ✅
Totally constitutional 💯
8:26 If you remember the Kyle Rittenhouse criminal trial, when DA Binger stated to the jury that Rittenhouse refused to cooperate with the police investigation (or some such similar comment), defense attorney Richards objected, which led to, among other things, the Judge saying to Binger, "Don't be brazen!" Richards demanded a mistrial, the Judge refused. Rittenhouse was acquitted. If he had been convicted then Richards would have had an easy appeal. Anyway, this is one of your best lessons. How did the Utah Supreme Court rule?
Judge ripped him up.
The analogy I would make, if the police had PC you killed your wife and buried the body somewhere unknown, can a warrant compel you to draw them a map to the location of the body? If the answer is no, then the same should apply to passwords since you are essentially drawing them a map to potentially incriminating evidence. They're free to attempt to break into the phone, just as they're free to use cadaver sniffing dogs to find a body. A warrant should only be able to compel you to stand aside and not hinder their investigation.
that's a good way of putting it.
Heh, I'd lead them on a wild goose chase. I would draw a map taking them to the most impossible places to get to, and watch them struggle only to find nothing. In the end, I'd say something like "I could have sworn this was the spot, guess my memory isn't so good".
Very well said.
@@82ndAbnVet funny, but not smart, that admission could be taken as a confession that you did in fact hide a body.
Agree. Another example: proof of guilt might be found in your locked file cabinet. Like a phone, it holds your private documents. Are you required to give them the key? Of course not. It’s up to them break it open or pick the lock.
I have heard in cases where the defendant had an encrypted hard drive. And that giving them the password then allows them to tie you to ownership of it's contents because you had possession of the password. So giving them the password basically is confessing to ownership of the contents of the encrypted hard drive.
About three years ago in Florida arrested a young guy. He refused to give the password to his phone. He spent 10 days in jail, still refused. He was released because of lack of evidence.
I was under the impression that SCOTUS already ruled that passcodes and PINs on electronic devices were no different than the combination to a safe, which has already been established as protected.
My response would be I'll be happy to unlock my phone for you in exchange for blanket state and federal immunity for any and all crimes I may be accused of or committed since the day I was born until the moment I unlock the phone.
As far as I can tell SCOTUS has not ruled on this. They refused to take up an appeal asking exactly this question in May 2021.
Wow yes I agree if it was an actual password I would agree but if they forcefully put your finger on the phone to read the fingerprint to unlock it that's something else.
@@krislarsen6546 No it isn't
@@SkylerLinux the police can compel you to provide your fingerprint. It isn't legally considered a "search" or an "interrogation".
@@krislarsen6546 that would be compelling you, while under their direct control. Any evidence gathered in such a way should be tossed out. Now if they did something different like took your fingerprints from your booking and used some means to use a facsimile to unlock your phone that would be a much grayer area. Anyway, everyone should learn how to disable touch/face id quickly on your phone.
I don’t use facial or fingerprint recognition on my phone. I do on my iPad, but I’m not carrying that around everywhere. There’s just too much on your phone, bank accounts, etc.
Many people don't use facial recognition or fingerprints because some in law enforcement can force you to open your phone or computer. Long passwords not related to you in any way (former address, phone number, pets name, parents name) that have letters & numbers & symbols is the most secure way.
@@mr.robinson1982 nope, a long phrase out of a book is better than anything else, numbers and symbols are of no use whatsoever. Even the guy who came up with the scheme of upper and lowercase, numbers and symbols has said it's stupid and he apologized to all who have to remember stupid passwords that are not secure anyway. The point is that you don't break passwords by guessing anymore, you bruteforce them with a computer doing the work, and computers make no distinction between letters, numbers and symbols, they are all the same.
@@noth606 While I agree that long phrases are the optimal way to go, I have to disagree that symbols are worthless. Attackers often use dictionary attacks which will attempt to brute force passwords that are using common words, and using a phrase out of a book is certainly going to be weak to an attack of that style. Which is why I'd suggest adding some symbols to whatever phrase you thought of, and it doesn't need to be completely random - just add some quotes or an extra dot, and you'll make the attackers life miserable. Example of random phrases:
Stride across a vermilion bridge
"Stride across a vermilion bridge?".
also, using uncommon words will make dictionary attacks far more inefficient. So do flip across the dictionary to the Z section for a stronger password.
Just to be goofy when I was younger I once created an empty encrypted container and the password was a 64 digit base 36 number i calculated from hex oblivion item codes stripped out the zeros and replaced them with symbols...i was weird
@@noth606 You clearly have a terribly incomplete understanding of both math and general password security. As they say: You know just enough to be dangerous.
Adding each extra set of chars(uppercase, numerals, symbols) is roughly the same as adding an extra char against brute force attack; a 10-20 fold increase in difficulty for the usual ~10 char password. Just using 3 extra symbols (ie capitalization and two numbers ) to replace 6 chars in a 20char phrase can multiply the difficulty by 20 billion. So one month vs 20 billion months of compute time. But nobody serious bothers to brute force a malicious attack even with offline data. (Semi-brute force is occationally used for non-malicious password recovery when some limiting parameters are still known.)
Online passkeys with an 8char all lowercase minimum can be easily protected from brute force entry by a 1 second time delay between attempts. (3183 years on average and 6367 years worst case, add uppercase and numerals makes this 3.4M and 6.8M years. )
Of course this is all assuming a proper encryption algorithm has been selected. If the passphrased is hashed to 64bit key then no long phrase will make a difference because 64b can be readily brute forced in reasonable time by any modest modern workstation.
I went through this when a guy texting on his phone hit me. He told the police that I hit him and refused to give his phone to the police for them to prove he was indeed texting. Fortunately I had him on dashcam, so it didn't really matter, but it did drag things out. Had I not had video footage who knows how it would have played out.
Couldn't they have contacted his phone carrier for his text records?
until the word "dashcam", i had no idea you were talking about a road accident, lol. i thought the guy was just sitting outside a bar or something texting, and then just decided to clobber you.
Your attorney could have subpenoaed his phone records. If the judge granted the motion, his cell provider would be compelled to give it up.
@@selfdo I wonder if this was civil case? So NOT producing your own evidence to prove your innocence is basically admitting guilt.
@@SmittyAZ A tort claim is supposed to be decided on the legal standard of "preponderance of evidence", not "beyond reasonable doubt". Can I tell you with absolute certainty what either IS? Not really, but that's what a jury is supposed to decide, should the case go before them.
If the court is crooked enough to rule in favor of compelling you to give the cops your cellphone password, REFUSE TO GIVE THEM YOUR PASSWORD, ANYWAY!!!
Pssst...password failure to wipe....
Why would you not want to unlock it. It can only prove your innocence, right?
@@just_passing_through You have the right to remain silent.. Anything that you say can and will be held against you in a court of law.. Note that they say ANYTHING YOU SAY CAN AND WILL BE HELD AGAINST YOU IN A COURT OF LAW. It does NOT say any thing about something will be used to prove your innocence..
When a police officer pulls you over and asks what you were doing, your response should be " I believe I was driving down the road, peaceful like and at or below the speed limit.. " and not "I was going 40 mph where the speed limit is 35 mph. Or better yet, answer "I don't know why you pulled me over.. " Law enforcement just loves admission of guilt.
PS: I know you were being facetious...Many younger folks nowadays don't realize that they should practice their right to remain silent.
@@MrPir84free
One minor correction, don't ever tell an officer "you don't know why they pulled you over". That gives the officer an excuse to say anything they want and it will (generally) stick.
@@MrPir84free
I guess I have a different perspective living in Australia. For the most part Australian police are very well respected and trusted. That may have a lot to do with the fact that to be a police officer you have to attend a police academy for three years, not just have a military background, and you’re in (with a military mindset of shoot before you get shot hard wired in). I (and most Australians) would have no issue unlocking our phone if a police officer asked.
I am NOT a Lawyer, however, my understanding of Constitutional Law tells me the 4th Amendment states that without a Search Warrant, the Police may NOT look through your phone without you permission, WITH a Warrant, the 4th Amendment states they CAN look through your phone, but the 5th Amendment States they can NOT force you to unlock it, HOWEVER, that Warrant allows them to have the Tech. Team hack (or force the Phone Manufacturer to unlock it) the Passcode and open the phone to be Searched...
Reminds me of the Inspector Clouseau bit, "Does your dog bite?" Dog bites. "That's not my dog."
I would enter the wrong pass 10 times on my phone in front of them clearing all data
If they ask me to open it or tell them one wrong digit and say they messed up keep trying and I never use touch or face if to unlock my phone
The fun thing about that is some years ago when they had a terrorist's cell phone and needed to get in but couldn't mess up the password or they'd clear the data. I never did hear what happened with that. I've never been much of a news guy 😂 but I definitely liked the fact that Apple was so impenetrable that even the government with their endless resources couldn't get in ☺️ I heard they wanted Apple to program backdoors into their phones and Apple was like "NOPE!" I should look that up and read about it now that it's been some years
@@since1876 The San Bernardino shooters? They ended up using an Israeli intelligence firm to hack into the phone.
It’s disturbing something like this could get precedent in Utah of all places. But, there is no way you should have to unlock your phone for anybody. That’s why I’ve never used fingerprint or facial ID. So many people have their whole lives on their phone, and innermost thoughts. Basically giving the cops the right to unlock your phone is more or less like giving them permission to read everything in your brain.
Why, because it's "conservative"? Most people who call themselves that are full on authoritarians.
They don’t care what’s in your brain. They don’t even care about drugs usually. I personally don’t give a shit if they force a dude with CP or searches related to murder to unlock their phone.
Solution, make your password "I want a lawyer, dog."
I get that reference! It's that our justice system is a joke sometimes
😂
The fact that hackers, phone engineers, recovery laboratories, and other alternative professionals exist, there should be zero excuse for the passcode of a phone or other digital device to not be protected under the 5th Amendment, regardless if Law Enforcement have a warrant for the phone, that warrant is solely for the seizure of the phone and not information contained in the mind of the individual who is separate entity from the phone.
Instead, much like how police can send other crime scene evidence, drugs, weapons, etc, off to a lab for analysis, the police should be required to do the same with a phone or other digital device, send it off to a lab to be analyzed, password cracked, hacked, data decrypted, or whatever by professionals rather than the owner be forced to self-incriminate or be a witness against themselves and/or not retain their right to remain silent.
Modern full-disk encryption (present on: any machine with Windows 10 Pro that enables bitlocker, any Samsung phone since at least the S10, any iPhone of the last five years) makes it impossible to get at that data without huge resources to throw at it. Unless you're talking about a high-profile federal case, the resources to get at the data is out of reach of most state prosecutions.
If there was an easier, legally unambiguous way to do these things then we wouldn't be seeing this mess.
@@zj6074 completely true, good encryption with a nontrivial password (and no software security bugs) will stop any hacker from entry without brute force guessing your code which for a phone will trigger its erasure. All these companies claiming to be able to get into your phone or computer without the password are hacking for software bugs to get in, while lots of bugs by nature exist there are far fewer that will get you in this way than before.
Any master key would be hacked eventually and abused to the point of bankrupting the encryption company’s business, this would lead to no one using official encryption software. There are many secure standalone programs available today and writing your own isn’t too daunting if you have the right math and programming skills combined, so the genie has long left this bottle and we can’t forbid unapproved software from where it would matter for search warrants.
There are no technological answers here, combination on a safe is the best analogy except that the equivalent of drilling through the lock is not an option in most cases.
If the information is on the phone, then it's not "contained in the mind of the individual".
You always have the option of erasing your phone when you're asked to unlock it and claim ignorance.
Also, the military will tell you to commit your passwords to muscle memory to avoid having the information tortured out of you- useful for vets and active duty.
@@maxsdad538 the unlock code is in the individual's mind, just as a combination to a safe is and the latter enjoys case law providing protection.
Worse, some crypto systems offer duress codes, which wipe the unit securely when the duress code is entered.
It’s been nearly a year. Has a decision been handed down on this yet? I live in Utah and this affects us all. Would like to know the outcome.
Interesting case. God help us if the refusal to incriminate oneself becomes essentially an admission of guilt.
A plumber friend of mine had a related thing happen to him last week that went a step further. His teenaged son posted something particularly stupid to social media (I think twitter?) and the cops showed up at the family home. The cops had FULL ACCESS to the child’s phone from their iPad. No consent had been given and no passwords shared. My friend was shocked that the cops could do this. Pinellas County, Florida March 2022.
This really depends what kind of security they had set up and what kind of back doors apple have set up. Its free game if they can get in without forcing you to do anything. Biometrics aside
get rid of anything Iphone, Ipad, Ipod, all contain Pegasus 2, its how they were able to instantly get into the kids Ipad, Pegasus 2 can instantly without your permission or knowledge, track your location, turn on yur mic, turn on yur camera, send receive code, even if you remove the battery.
iPads don’t require you to set a pin or passcode unless you are using Apple Pay, Touch ID or Face ID.
Pinellas County is corrupt from the floor up! This doesn't surprise me in the least!
@@doomed2die595 😂
"even if you remove the battery"😂😂😂😂😂😂😂😂😂
Keep in mind that there is a difference in how your phone is locked. If you lock it with facial ID then they could point the phone at you to gain entry, same for finger scanner where they could force your finger on the phone. My suggestion is if you have sensitive data to only have a passcode ID (PIN) and even if you were ordered to give up the pin, you could simply forget the pin. No law that I am aware of states it is unlawful to forget something. I would also have the phone wipe after 10 bad attempts enabled.
This would be like the police obtaining a warrant and searching your home for incriminating evidence. They do not find the evidence. They could then ask you where the evidence was since they did not find it (too well hidden). You would be forced to show them where the evidence was, leading to your prosecution. It will be interesting to see how the state supreme court handles this one.
It would interesting to see how the US Supreme Court handles it. Something like this should NOT be left up to individual states.
Exactly, no court, in the states should ever hold that a person give up what is in their head, … or hell there would not be anyone to rule over as they would all get the death sentence, …
How could they 'force' you ???? You always have the right to remain silent.
Thank you Steve! I've been looking for this particular and most reasonable application of the 5th amendment. I know someone who was just a passenger in a car that had been pulled over for a traffic infraction, and the police told the passenger he had to give up his cell phone and password. He did not. The only thing that saved it was a supervisor showing up and allowing them to be on their way without opening their cell phones.
WTF... in that circumstance you say the word NO sternly with a steely stare into the offending cops eye.... then shut up.
@@robert5 He never thought he would be the victim of some cop fishing expedition. Neither did I! Some really horrible cops use fear of the police because they are sadistic bastards that like to make people miserable. I wonder how many people have given in to this kind of cop bullshit?
@@gregorylewis8471 I remember reading of a rancher in texas that erected a huge billboard that told people of some of their basic rights. The police there DID NOT like that.
It seems that most police count on people not understanding and exercising those rights.
@@jum5238 You do have to wonder why you need a billboard. They have cops come and talk to schools. Civics classes should also invite civil rights attorneys to explain what your rights actually are. More speech is always better. The cops are welcome, but so are the CR attorneys.
@@robert5 I do that daring the cop to say something when I set off the metal detectors at the court house to vote. You don't want me armed in the court house, move the polling machines.
Truly scary what prosecutors are attempting to argue
Did you pee your panties from the fright?
The understanding I took back when I researched biometric security and how it intersects with law is that a password is information known ideally only to you, but its something in your mind that you have to verbalize yourself. If its written down and they find it well thats something OUTSIDE your mind... but the research I found suggested that you cannot be compelled to speak or write a password, they (the police) have to find it out themselves through other means. Interestingly, the information I found suggested that biometrics (fingerprints, faceprint, iris, whatever) are things that can be found or collected without you saying or doing anything and thus can be compelled from you.
I agree, this is essentially what I understood in my readings over the years. The password is in my mind, and I don't have to give it up if it will incriminate me. It one of the reasons I don't use fingerprint unlock on my phone.
That's why I don't use anything that employs biometrics.
A 17 digit password of mixed letters and numbers should suffice.
Let them try to figure it out.
Need 3 level security. Facial Rec, thumbprint, and lastly, a spoken "password". You could go 4 level by adding a 9 digit/alphanumeric typed in password also. All it requires is someone to write a bug free app....
@@ajwilson605 a good long password of letters and numbers is better than all 3 of those combined.
@Buddy Austin The first 3 are tripwires.... if bypassed the device self destructs/erases all data.....
Please keep us informed on this issue as it progresses. TY
This is ultimately why I avoid biometric mechanisms for my phone. The Supreme Court of the United States ruled a while back that you could be forced to provide biomedical access but you cannot be forced to provide the information needed for a password.
No they didn’t.
"With the stress I'm under right now I cannot recall the decryption key".
Your move, Mr. Prosecutor.
Contradicts other laws.
They did because our Supreme Court are too old and can't grasp technology most things on our phone isn't even on our phone. A warrant to unlock a phone isn't a warrant to access a server for emails it's a problem what if it accesses my own server in my home?
Lol I’m using a new iPhone 13 pro and I haven’t turned on the facial password.
Wasn't there a famous case some years ago in which after long drawn out proceedings a lady was ordered by a court to provide her password to the FBI or some-such at which point she claimed she had forgotten it. The FBI then ended up suing Apple to try and compel them to decrypt the device and Apple refused... subsequently the FBI was able to do it themselves eliminating their need for the password. Not sure what happened to the original lady.
You might be thinking about a case in CA(?) involving a a dead terrorist. Government tried to order Apple to crack the phone and Apple refused.
@T.J. Kong They brute-force cracked the 4-digit code on the Apple phone using an emulator. Reboot won't help.
On top of the fact that a warrant would only cover the seizure of the phone, not the password, it still falls under invasion of privacy for them to bypass the password in any way, shape, or form. I would say the same for a warrant to search the home, they should still have a requirement to need the homeowner to be there to choose whether or not to let them in. Invasion of Privacy really needs to be made a bigger deal of in so many cases. And, in the case of rental properties, it would technically fall under the landlord, not the renter, I would feel.
Great episode and great question!
I also had a question: Do US citizens have the right to confirm the identity of a police officer before complying with them? If police stop me on the street or pull me over, I want to be able to confirm they are actually a police officer and not an impersonator trying to rob or exploit me.
yes, we do. but we don't have the right to get all sovcit and demand they answer all our questions while refusing to identify ourselves.
Impersonators are usually thwarted by asking for a supervisor. This is not foolproof though in cases where the impersonator is working with other impersonators.
@ Offlineable
Department policy requires them to identify and some states it is law (should be all states ) upon request must show state issued ids
I’m any case stop in a well lit populated areas and always record
You can call 911 if need be. just like when you are getting pulled over you can also do this
From the officer's perspective -- which is how courts will analyze excessive use of force complaints -- they do not need your consent and do not need to spend time convincing you they're legitimate. If you don't obey the order, they can escalate.
Whether or not you catch a criminal charge for not obeying a police order is going to be taken from your perspective. If it was reasonable to doubt that they were legitimate, you would in theory have a defense to a resisting charge.
I know that doesn't solve the problem. The answer to your question works out to "no you do not have the right to confirm the identity of a police officer giving you an order."
And US citizenship has nothing to do with it -- though I know what you mean by asking the question that way. But the same rule applies to everyone, from US citizens to resident aliens to undocumented.
You can only disobey the order if they're not cops. And you wont' know they're not cops until you disobey the order and end up charged with resisting arrest.
For those that are concerned, one trick the police might pull is to ask if you'd like to make a phone call such as to a lawyer. After you make your call they take your phone away before you can lock it again. I believe this happened to Project Veritas during their recent FBI raid issue. It's about enough to make one consider having a landline again.
If they have a warrant, then that is just good police work. Otherwise it is a civil rights violation. Upon request they should be required to offer you an independent means of contacting your lawyer (their phone).
It takes one push on a button to lock the phone.
Project Veritas are known and documented liars, so...
@@ostrich67 so, how long have you worked for A.C.O.R.N.?
@ostrich67 if you want to go on like that, it's best to bring the receipts. Give me at least a solid example that isn't splitting hairs like FB fact checkers.
This would be akin to law enforcement showing up at your home with a search warrant and demanding you *TELL THEM* where to find the evidence they're looking for.
I want to say it's a hard no, the reason why is that search warrants are typically limited to a scope of where they can look for specified pieces of evidence. Like if the police believe you are running a meth lab in your shed so they get a warrant for your shed but go into your basement. If LEO is interested in your text messages, what's keeping them from searching your pictures, emails, pdf tax history, social media history and discussions etc...? We can say that anything find would be inadmissible but it wouldn't be a deterrent from being used in coercive interrogations or other pressures, simply because you are still giving them access to far more than what they are permitted to have.
Then as technology advances with things like facial recognition, retinal scanning, and let's say at some point your national ID must be linked to all of your activities including a transponder that links to your phone that has access to your billing, social media, clients private info, proprietary employment secrets...the state wouldn't even need your permission to gain access to things. Your right to privacy would only apply to private citizens and not the state, while I believe your right to privacy applies specifically to the state. I know I went down a conspiracy theory rabbit hole, but that's where things like this lead.
The slippery slope is only a fallacy in name, since everytime the state mealy mouths it's way around an explicit constitutional right they say "well but they didn't mean this." Let's regard the phone as a safe where one keeps all of their important stuff according the framers, and a warrant grants them access to the safe to find evidence of merchant fraud but they also found a manuscript expressing your displeasure with the local jurisdiction you're being prosecuted in with names of others that share your views...what then? Do you trust the state to just ignore your criticism? Since it was part of the scope of the search warrant but not relevant to the investigation does it get ignored, destroyed or preserved for the sake of accuracy and "transparency" where it can become public record after a set amount of time?
The question itself of what is a cell phone and what function does it serve for the individual and in society is a deep and dangerous question that I don't trust the state to make because the state will 99% of the time rule in it's own favour. Maybe in ten years after we have three new justices can we ask SCOTUS that question, but I don't trust the ones we have now. They're too old and too out of touch and roo concerned of the proper use of an oxford comma.
All thanks to the "Patriot Act".......
@@ajwilson605
Do you really think the tendency of government elites to want more power is that recent?
@@PvblivsAelivs No.... But things like the "Patriot Act" legitimize the power hungry politicians position of superiority. Or so they surmise....
@@ajwilson605
But that just makes the "Patriot Act" another step in government's continued grab for power, not even the first step, hardly a cause to say "all thanks to the 'Patriot Act.'"
There is always a chance that there is nothing on the phone that would work against you for the crime they are trying to convict you of, but there may be evidence of another crime that was commited, and you should not be obliged to show evidence of a crime, they know nothing about.
Maybe there is evidence of no crime eve, but a lot of circumstantial blah blah that can be twisted by an over zealous prosecutor to make you look guilty. “ so 20 years ago. You thought/ your gem teacher was gay . Is that why he’s dead ? Did you kill him “
Simple answer, NO! Police have the option of asking for the information from the carrier and should be forced to do so. Otherwise police can and will manipulate the data when in their possession. The only information that CANNOT be altered or manipulated is the information from the carrier (AT&T, Verizon, T-Mobile, Sprint, Mint Mobile, etc) which can be obtained with a court order. Do NOT give your pass code information or unlock your phone for the police, they WILL alter it to incriminate you if necessary. Keep in mind police lie and WILL lie in court and are allowed to do so without ramifications. And BTW Steve, you don't have a man alive that can force my thumbprint physically, that's a dirtnap waiting to happen.
Exactly. It's like this one lawyer who keeps on telling people to don't ever talk alone with the police. Just zip it. The police can make something out of your words even if it's a stretch.
@@Rhaspun 'Serve and protect' is only a slogan to 'serve' their own purpose and 'protect' their own rears. Not all but most of our police are nothing more than criminals with badges. When the public loses more to police seizures than to robbery, and its backed up by every state in the union, then there is something seriously, seriously wrong with this country!!!
@@Kmangod It quickly got worst since the Patriot Act was passed. It has put the mindset of law enforcement in a bad direction.
@SY-qg6qn Wrong, they can pull up whatever information they want, phone calls or text messages as long as there is a court order. That's why, like a wallet, I don't carry a mobile phone. My info is in memory.
@@johnnyblade6088 You are correct sir, and they can also change/alter that information very easily and as needed to convict you of a crime.
Phones are easy to unlock once they've already been unlocked once after being powered on. If there's a chance the police are going to take your phone you need to power it off completely.
Many phones have a "lockdown" mode accessible from the power button. Generally speaking, it takes me less than 1 second to activate lockdown mode, and it disables fingerprint ID, just like a reboot would.
@@de_w8tam it's not about finger print id or facial recognition. Once the phone has been unlocked the first time from start up, there is software that police and government agencies use to easily unlock the phone again. Some PD will just ask for your phone and not even request a password. However if a phone hasn't been unlocked yet from being powered off, that software won't work. So the first thing you should do is power off your phone.
To find someone guilty they have to have no doubt your guilty. It's called " reasonable doubt " in a criminal trial. Just because someone has a locked phone doesn't prove they are guilty of a crime just because of implied guilt.
Actually technically what you described are two different things. Reasonable doubt does not mean "no doubt". It means that the doubt that you have must be reasonable, not based on something like the man on the moon could've done it etc.
@@aigtrader2984
Yeah, that magical word "reasonable" is used all over the legal system.
It's job security for lawyers because it leaves room for argument.
It garutees a different system for those who can afford to argue what's reasonable.
Whats reasonable for some scares me.
What would happen if we d make lawmakers create laws that are specifically
@@aigtrader2984 An example of reasonable could mean, he might of committed the crime but since he's black he probably did commit the crime so the decision is he's guilty because I believe it's reasonable.
@@aigtrader2984 I never trusted that crater faced loony!
@@SawmillerSmith
A few years ago Police forced a Coworker of mine to use his thumbprint to access his phone. I've used a passcode ever since I heard that story.
Wouldn't it be nice if government didn't break constitutional rights all the time.
Anyone who feels that it's ok to compel people in anyway, it can work against anyone b what goes around, comes around.
So no warrants for any searches or seizures ever? A bank robber can just run into his house with the money and the police can't go in and get him?
This is closer to forcefully extracting knowledge than acting on warrants. Sure they should be able to try and hack into his phone, but the point at which you can force him to tell you something is the real issue.
It probably sets a bad precedent imo. The biometrics im iffy on, because it seems close to say gathering DNA without concent from a suspect which is fine, like pulling saliva from a cup seems reasonable. But on the other hand imagine if they kept a log of retinal scans of yours or something to unlock your phone. Seems like an invasive practice
This reminds me of the Rittenhouse trial where the prosecution tried to imply that Kyle's silence was indicative of presumptive guilt, and then got reprimanded by the judge at least twice
yes, the law is an interpretation of the written word...
most of the judges just do fogy way when needed..
lots of that fog is when the rich person is at the accused party...
one law is for poor, middle class than a rich person...
Remain silent
That prosecutor was so bad that sometimes I think he was doing that crap on purpose hoping for a mistrial so he could have a do over.
That "lawyer" failed every firearm safety rule in the book. Someone on the jury should have sued him for pointing a weapon at them.
The prosecution blew that case on purpose.
I have learned a lot about the law. Thanks Steve for your expertise and especially for telling all your stories. You’re a gifted speaker.
Sometimes it seems that it is more about winning the case than getting to the truth... for both sides. That's not justice, that's playing games.
It's not sometime, it's almost every time.
Our system doesn’t seek justice, except by accident. It’s adversarial setup means it’s about winning and losing.
The defense isn't in the business of getting to the truth. I'm not sure who ever filled your head with such nonsense
@@deusvult6920 It is called life experience. I have served on a jury before and seen a close relative go through a trial that made no sense at all. And the "evidence" the prosecutors in both trials used was very shocking to me. For example, how can having a store loyalty card make one guilty of a crime? As a member of a jury that prosecutor lost all credibility to me. Also, the man in the video evidence was a much taller and heavier man than the one on trial. So not so much nonsense than seeing the sh!t for myself. In both cases these were lives being messed with, both the individual on trial and their families. Also the financial cost of going through a trial of a crime you are not guilty of... yeah, you could get a free court appointed attorney; but sometimes they are overwhelmed with other cases.
That's REALITY...DA's don't give one chit about guilt or innocence...All they care about is a CONVICTION; All the cops care about is finding more things to charge US with...
I disable all biometrics and refuse to give out my password! Been to jail before, not opposed to go again for a cause I believe in.
"Sorry officer, I'm afraid that, with all the stress of being charged with a crime, I've forgotten the password for my phone. Oops."
The only thing they'll ever see from my phone is the amount of texts I ignore that ask if I can come in on my day off.
and all the voice mails offering me a warranty on my 20 year old car!
This reminds me of the truck driver who refused to help the DOT do a safety check on his truck, by refusing to operate the light switches, horn, etc. based on the 5th. He said he did not have to be a witness against himself, in the event something might be wrong with the truck.
How did that turn out? It would make sense if they refused to let him drive until he demonstrated that the lights worked.
I saw that video as well.
It doesn't work for truck drivers as part of our getting licensed to drive in the first place we have to basically give up all rights of this nature. Is that fair? Maybe not.. but they'll never get rid of those restrictions.
@Collen Flarity Yes and the reason he was convicted was because he locked the truck. The judge said if he left the door open he would gave been found not guilty. I carry a spare remote and often leave my truck running and locked with my dog in it. If a cop wants me to get out that is also what I do and tell them I am just making sure my dog is safe.
@@CapAnson12345 If he hadn't locked the trucks door he would have been found not guilty according to the judge
5th to remain silent but 4th to be secure in papers and property
Sadly, in the UK, they can force you to hand over passwords for stuff or you go to prison for 3 (or 5 in some circumstances like national security) years. This includes stuff like Facebook (or others) accounts iirc.
What would happen if you destroy the phone?
@@james64468 that’s destroying evidence. Also. Illegal
That would be interesting if you Genuinely forgot your password, say after getting very drunk or hit on the head. Innocent people going to prison.
While we're on the subject could a phone fault corrupt the pasword so that the owner's genuine password fails? How can that be proved??
LOL @ the UK and their weak sentences. I seriously doubt they have the will to do that.
I'll have to check if my flip phone has a lock.
This entire discussion is insane. With all due respect to the legal profession, the fact that this is a question at all shows what is wrong with our justice system.
Who actually WANTS to live in a society where the police can force you to talk, "or else!"?
I recall some Supreme Court rulings on this already and that ruling had a lot of discussion around how our phones have become an integral part of everyone's life and can reveal lots of information but here's my bigger point. To give someone the password to the phone, you have to speak. The fifth amendment is pretty spot on on the fact that you don't have to talk. They literally cannot make you open your mouth and say a word so for the life of me on a practical sense I don't see how they get around this on to regards, 1/5 amendment and two, practicality. If my phone has some crazy incriminating stuff on it then I'm certainly not going to open my mouth and allow a police officer to look at it. Send me to jail for contempt of court, let's go down that road but it's still gonna be less than what happens if they open the phone. So from a practical standpoint I don't see how they "force" anyone to open the phone. That being said, I can't see for the life of me how the prosecution can use that against them. They literally have no idea what's in that phone. Maybe he likes sending naked pictures to his girlfriend and doesn't want the prosecutors to see it. Who knows? But it's a guess and they are trying to argue to a jury that they could take a negative inference off of someone not giving them information? I don't see how this stands up
@@Mikoshi700 k
Not always true. About having to speak, I mean. If you use a pattern lock or a fingerprint scanner to unlock your device, you don't have to say anything. The latter technology is the least secure from a law enforcement perspective: they just grab your finger.
@@jameskaraganis2569 Also some newer devices have facial recognition so all they have to do is point the device at your face
@@jameskaraganis2569 this was discussed in the video but not in my commentary. The purpose of this case, and the video, it's solely using your voice to transmit a pass code to police
@@Mikoshi700 I would need to cite on that because as a rule of thumb you can't hold someone in jail on contempt of court charges beyond the time they are reasonably expected to give up the information. Once it's clear that no term of confinement will do so, they have to let you go
This seems to me to be the same thing as coming to your home with a warrant and demanding you show them all your hiding places…
YEP! "This says I can't prevent you from SEARCHING; NOT telling you where it is..." Kind of implies it in the words "SEARCH" warrant...
Nice to get that info. There's another issue related with the same situation: The cop make's a search and finds a phone with the suspect. They suspect that the phone is stollen. Then, they say to the suspect to demonstrate that the phone belongs to him unlocking it. If he doesn't they consider that the phone is stollen. So we're on the midle of a difficult situation: you're arrested cos the phone may be is stollen, or you give them access to your phone that can incriminate you in other ways.
that's called entrapment and it's extremely illegal.
US English, only!
Use a pic of yourself as your wallpaper.
When it comes to biometrics, you can enable "lockdown mode" where the device will only unlock with the passcode. Due to having proprietary company data on my phone, I also have it set to factory reset after a number of failed attempts.
Same here
Only a certain select of my aps are accessible via biometric unlocking, to get access to my entire phone a pass code is needed. They have 5 attempts to unlock my phone and it factory resets and there is no warning it will reset.
Be careful. If they gain physical possession of the phone and can copy the NAND they will be able to mount it inside an emulator. The copy will still need the correct pass code, and it will still be wiped on failure, but they can mount as many copies as they want. A 4 digit numerical pass code only has 10,000 possible combinations so one could gain access within a weekend via this route if they have the correct equipment.
That's why I don't even cross the border with an active phone. Instead I will use a program like titanium backup to make a full copy of it, encrypt that copy on my computer, wipe the phone and remove the SIM card, and then cross the border with a phone that has no data to compromise. Then after I'm through all I have to do is download the encrypted file from my server, decrypt it with my password, copy it onto a microSD card, and then everything will work exactly as it was before. Takes a bit more work to do it this way, but at least the security is significantly higher.
@@Elliandr a lot of phones these days have a hardware security chip that stores the keys nowadays. Still possible to dump it I’m sure but it is significantly harder.
@@tylerfricks7369 Let me put it this way : Do you know why the Nintendo Switch was so easy to hack? Because it was based on modern smart phone architecture. This allowed people to dump the NAND long before running a CFW. Yes, there were keys that tied the NAND dump to the console itself - that's why you can't use the NAND from one console in another - but the NAND dump allowed people to restore their system NAND (sys NAND) after making a mistake and then eventually run an emulated NAND (emuNAND)
Later hardware revisions of the console tried to make this impossible, but all they could do is try to remove the button press signal achieved by using a jig to cross two wires in the rails and that was then bypassed by a minor hardware revision. After that Nintendo didn't have the ability to actually stop people from doing this so resorted to lawsuit to stop it.
Everything that's been done to this console is based on research into smart phones in general.
Regardless, people can now emulate a Switch instead of running it on Native hardware and while you can't just run your NAND in an emulator, it's only a matter of time because older console, emulators like the Dolphin Emulator running Nintendo Wii which also does this can run a NAND backup no problem despite having similar security.
Now, if random geeks with too much time on their hands can do this to Android hardware what makes you think that the resources of the US Government can't? If the FBI can't do this it means they just haven't hired the right people yet.
I'm glad it was appealed. It fits right into the 5th amendment. It could be giving evidence against oneself. Let them figure it out.
Using YOUR finger should also not be allowed because you are compelling them to participate in your own prosecution.
I was a juror on a case and we were instructed that we could not use whether they testified or not as implying guilt or innocence.
The thing with fingerprint ID is that you are already compelled to provide fingerprint data when you're arrested. Which is why it's considered a very insecure method of securing your phone, it's not difficult to recreate a fingerprint ID to bypass a fingerprint scanner.
@@inibrius5380 it should be illegal for them to go into your phone without a warrant and using your fingerprints to access your phone without your permission or a warrant seems to be a good way for a lawsuit to begin.
@@julietteoscaralphanovember2223 Yes, they have to have a warrant to get your fingerprint. The 5th amendment means they can not get a warrant to compel you to TELL them something, whether that be where the body is buried, or what your password is.
If the police demanded access to his written records without a warrant to look for evidence of wrongdoing, there'd be no question that simply grabbing them and making copies to be examined for evidence would be deemed an unlawful search and seizure. How is the electronic equivalent any different?
"I'm so sorry your honor. I understand that you've compelled me to give up the password, but due to the stress of the entire situation, I seem to have completely forgotten the password. Guess? Oh no, your honor. The phone has a limited number of attempts before it locks down and must be wiped. I don't want to be responsible for that happening."
"We don't believe you."
"But you cannot hold me in contempt for not remembering." :D
"Actually, we can hold you in contempt for violating a court order, even if you claim that you forgot. 30 days in county. We'll ask again in a month if you still can't remember."
All they have to do is prove that you really did not forget to charge you with perjury.
The law is not for the feint of heart nor the weak of mind.
They can, and will. They did it to me.
See you in jail. That is absolutely NOT how it works... 🤦
I feel like having to give up the password to your cellphone is similar to having to give up the location of your diary. Both have a high chance of containing something incriminating that was to be completely private, but not giving it up doesn't mean that it contains something like that. They can look for another way to get to it, but you can't be compelled to help them do so
Or highly emotionally embarrassing
That's not really what it's like. A diary is physical evidence, and you can be compelled to procure it, just like you can be compelled to give them your phone.
It's more like you wrote your diary in code and you refuse to tell them how to decode it.
Passcodes are information known only to the owner, so not forcible to be revealed. As far as people at the border, the rule is withing 100 miles of the border is equal to being at the border, no matter if/how recently you crossed the border, and I've heard ~2/3 of the US population lives withing that area, meaning "at the border" basically negates 2/3 of the US populations Constitutional protections.
Post arrest silence, yeah that came up in the Rittenhouse trial. Judge chewed the Da's ass for it.
"To participate in your own prosecution" is similar to what some States do in regard to field sobriety tests. These States impose penalties for refusing to do their work for them[proving yourself intoxicated].
A little difference: Being able to drive a car is a privilege and not a right. You have to go through a process and agree to the rules to get a Drivers License. You have already agreed to these rules if you have a Drivers License.
@@perryallan3524 I got stopped some years ago for DWI. I stated "I would like to have my Attorney present" and did not take any tests. At trial,there was no direct evidence to present,so the Judge declared me acquitted. He then excoriated the Police,ADA and declared my license restored and any tickets to be revoked.
As long as there is any immunity for judges and other public servants and no personal accountability for their violations, rights are essentially meaningless as the violation continues until resolved.
Until the penalties for these violations by public servants are prosecuted and sentenced as felonies, the crime will flourish.
I was a part-time, small-town cop for about 20 years. I do try to pay some attention to LE-related court decisions. I was sure this had already been decided: passwords/passcodes are protected, finger prints and/or facial recognition, not much. I would swear I remember hearing/reading about that in the last few years!
Conveniently it is fairly easy to not position your properly 5 times at which point your phone will require a pass code.
There have been cases, but as near as I can tell the problem is a lack of cases at the federal level, and SCOTUS in particular. The NJ supreme court has ruled that the 5th doesn't apply, and a FL appellate court has ruled that it does. I haven't found any federal court rulings, which is surprising considering how long passcodes have been used on phones.
@@suedenim9208 NJ case is not that straightforward. The precedent involves a cellphone containing data that the prosecutor already knows, so it follows the doctrine of “foregone conclusion”. If the prosecutor has no idea whether the phone contains incriminating evidence, then it’s not a foregone conclusion, so fifth amendment protection applies.
@@SteelHex A big problem with the NJ case is that plenty of legal scholars don't think the foregone conclusion exception applies.
@@suedenim9208 I’m just saying that for a different case where the prosecutor doesn’t know what’s in the phone, the decision could be different.
Well damn Steve, sounds like you just made a valid argument against field sobriety tests as well, which are just as much self incrimination if you are indeed intoxicated
Same with breathalyzers.
Waiting for SCOTUS to rule cops aren't allowed to make promises
The thing with those is that you can refuse to take the sobriety test, and this can not be used as proof that you were driving under the influence, but the state can then refuse to grant you a driver's license even though you are not guilty of a crime.
@@phillipsusi1791 Bingo! Many states have "implied consent" statutes that link the privilege of driving on public roads to consent to submit to a test of breath, blood, or urine for intoxicants and the concentration thereof. Failure to complete a test or produce the needed specimen can result in suspension or revocation of driving privileges as 'administrative actions' regardless of any subsequent finding of guilt at trial.
Search warrants should have to be information specific. But if they get access to your smart phone all the information on that phone is now accessible and not protected.
This goes against all reasonable rights to privacy.
Generally speaking most of the courts have ruled that fingerprint or facial recognition ID locks are not protected but some courts have even protected those types of locks on phones computers etc but most have chosen to say they are not protected. Actual alphanumerical passcodes are almost always protected but there is an exception and he briefly mentioned it and that’s been at international border crossings. Another example that might not be protected is if you have a computer with a separate random code generator that is constantly creating a new password every so often and you need the physical device/ key to unlock the computer, they can get a warrant for that device/ key because it’s not a password you carry in your mind but those type of security devices are kinda rare outside of certain professional needs so situations involving them are probably rare.
This is exactly WHY I would never do Facial Recognition or Thumb Print as a password. They (Cops) can’t make you talk. Try to be WISE and never think the Police are there for the benefit of the Citizen’s.
I once arrived at my former office and the cops were there, apparently one of my colleagues had gotten involved in some criminal activity. They asked me for the password to my computer and I told them "I forgot." They didn't believe me, but honestly, I had at that point forgotten the password to my PC that I use every day. I guess I was in shock. They kept pushing but couldn't do anything about it and neither could I. Eventually, they let it go. Afterwards, our IT manager recovered the PC from the BitLocker codes as I still couldn't remember the password.
PRO TIP: When crossing an international border REMOVE ANY BIOMETRIC features. I believe they CAN make you put your finger on the fingerprint reader, so if you turn that (and things like Face Unlock) off, then PIN is the only option...and "I don't remember the PIN, sir" is still an option. Granted, I've had border guards ask me to enter my PIN and I did because I wanted to get into their country (in this case Canada), and if I refused I'm pretty sure they would have told me to head back home.
They can seize the phone/computer in that case. IIRC there was a case years ago where the Border areas have a weird loophole where they can't force you to unlock the phone but can impound it, and hold on till you do unlock it.
Get a cheapie burner phone just to make calls, with no social media apps, etc. Or use a second temporary account.
I remember my uncle had this issue and he just had a burner phone.
That's what I do. I have one phone that I use for traveling. If they want to seize the phone to cause inconvenience to me then it won't matter. That's why they will seize your phone since they know that most people have a lot of their daily life tied up in their phone.
I've always felt that laws requiring people to identify themselves when arrested or detained violate the same principle... yet SCOTUS specifically allowed those in Terry v. Ohio and subsequent rulings. Consider;
Random person stopped in the vicinity of a crime with nothing apparently tying them to it. If they aren't compelled to do anything then there is no reason to hold them and they are allowed to go about their way. Forced to identify themselves (or go to jail for failing to do so)... oh look at that, they have the same last name as the victim OR they've been arrested for the same crime before OR they have an outstanding warrant. Suddenly, there is more reason to look into them or even arrest them on the spot. They have clearly been compelled to be a witness against themselves / participate in their own prosecution.
You have the right to remain silent... yet you have to identify yourself... so no, you DON'T have the right to remain silent.
It is an inherent contradiction... and opens the door for more such 'minor' exceptions that eat away at these fundamental principles.
Except the Constitution never mentions the words, "remain silent." That was made up by SCOTUS in 1966 in the terrible Miranda case. Anyway, the point of remaining silent in the Fifth Amendment context is to not incriminate oneself, not some general right not to speak. If I say my name, that isn't incriminating myself (saying a password could be, because it suggests ownership of a device that may have criminal evidence in it).
Terry v Ohio was a Fourth Amendment case anyway, the issue being, can the police detain you long enough to determine if you are engaged in criminal activity if they have reasonable suspicion? I doubt the Framers would say that police need a warrant to walk up to you and ask you a question if they suspect criminal activity. BTW I do think the stop and ID laws are BS, but this is 4th Amendment not 5th. And it's up to the individual states to pass such laws (unfortunately). My state (CA) doesn't have one.
@@uclajd Yes, Terry v. Ohio examined a 4th amendment question... but they came up with an answer which violates the 5th amendment. Providing your name can and frequently DOES amount to being a witness against yourself. Indeed, that's the whole reason police are SO very determined to ID anyone they come into contact with. It is specifically to check for warrants, arrest history, and anything else they can use to make an arrest.
Also, various forms of the 'right to remain silent' LONG predate Miranda.... and indeed the United States itself. The primary innovation of Miranda was that the police must NOTIFY people of this right.
@@ConradDunkerson Again the Constitution is silent on "remain silent." The issue is whether the speech is testimonial, not actually speaking. And no identifying oneself is not testimonial.
And Miranda was a travesty, the idea that the police have to be your advocates in the field (but only part of 5th and part of 6th, no 4th at all). Ludicrous!
Ring Camera: We don't need a warrant, we just give the Police a video.
When a bookie gets caught, and his encrypted ledgers seized, can the police compel the bookie to give the cypher key that would convert the ledgers into readable form? I'd have to believe they absolutely cannot legally compel the accused to provide that information. Even as a bystander, I have zero duty to help the police investigate a damn thing.
Actually, you do. If you are a landlord and have a key to your tenant's apartment, they can get a warrant to compel you to unlock the door. Likewise if you are a bank and they have a safe deposit box in your vault.. a warrant can compel the bank to grant access to the box.
@@phillipsusi1791 So they said "as a bystander" they don't have to do anything and you reply saying they do and then give examples where they're not a bystander and think you've proven something?
@@jarodmorris611 a "hydrant"? Did you mean to say bystander?
@@phillipsusi1791 Yes. Sheesh I need to proof read better when commenting on my phone. Kind of kills the point I was trying to make.
@@jarodmorris611 Ok, so the meaning of the word bystander in this context isn't really clear. I assumed he meant anyone other than the accused, which would apply to both their landlord and their bank. You seem to think the OP meant something else?
I feel like both sides have missed a serious point, and I'm concerned that Utah's courts are going to rule in a way that causes problems soon. There's already a good amount of behavior and physiological research that has shown a correlation between being cut off from your smartphone (or other electronic data storage device) as causing a behavior and physiological shift in a person that is consistent with brain damage and/or amputation. The evidence has been strong enough that there's a few studies happening right now to see if adding in these devices to people who have experienced those injuries can help address some of their symptoms.
Which implies that there needs to be a very real consideration by the courts that data stored on those types of devices should be considered as part of our physical being because we literally think of them that way and on a biological level. And for a real-world example...
A friend of mine had an electronic device implanted in her to help with neural damage sustained during a severe car crash several years ago. It's physically inside her body at all times, cannot be removed without invasive surgery, and prior to its installation she was confirmed to be disabled as a result of the injuries this device prevents. Can a court legally compel her to provide (or otherwise take) data from this device against her wishes? Wouldn't that be explicitly a violation of the 5th Amendment's clause about being compelled to witness against yourself? If she cannot be compelled, because it is a required part of her physiological self to the point she is legally disabled without it, wouldn't this data regarding electronic storage devices imply there should be a similar consideration?
I think you went a bit too far there. Making someone not have their stupid little distraction device in their hands to swipe on 24/7 isn't an amputation, and if they are going to have a mental breakdown just because they can't play with a gadget maybe thats proof they need to step back from it and actually look around them at the real world instead of on a screen. Humans made it thousands of years without this shit, somehow only young people in that last few years cannot exist without a 5G umbilical cord. Thats pathetic. A cellphone is a luxury, not a necessity. Trying to draw parallels between one and a medical implant which is a machine designed to treat a medical condition is, as any girl taking a ten inch dick for the first time can tell you, a bit of a stretch to say the least.
@@nickwarner8158 I dunno. I've seen some autistic people who will go nuts if you take away their electronic pacifier.
Police can't remove a bullet Winston v. Lee. Beyond blood draws the court has been very protective of rights when it comes to something invasive. Note the guy who died during a forced blood draw recently.
the one case about the laptop can you tell us more when you find out.
Since this is almost a year old, does anyone know how this case was decided, if it has been?
Hell, there is so little on my phone I don't even lock it.
That being said, I'll be MORE than happy to file a civil rights violation suit against any cop that takes it off my person and goes through it, as a matter if principal.
No permission, no warrant, and I don't give a S if there wasn't anything incriminating in it, he's in for a world of hurt.
Amen
I remember a few years ago in a course in computer science. Funnally enough at the University of Utah. The question possed to the prof was about the fbi wanting apple to get into a phone, but Apple refused. Artical: Apple refuses government's request to unlock Pensacola shooting suspect's iPhones. The prof told the class in his opinion. that if you are asked by the police to give your password to your phone that it wouldn't be illegal as long as you remain silent, but if you used face recognition or figure print then they could use those to access your phone without you speaking, so it would not be illegal for use of those. The logic behind it was that you are not compelled to speak, but for face they could hold the phone up to get it to unlock. Similar for a finger, but lift hand and place it on sensor.
That is the most 'accepted' chain of thought, but it still has not been fully vetted by the courts and until it has, we do not know where the limits will be made.
I have a password and a fingerprint reader on my phone. I one dropped the phone, and a rock happened to hit right in the fingerprint reader, rendering it useless. (you can't really see it unless you look VERY closely). At first I was upset, but then saw prior cases where the police grabbed someone's finger and pressed it to the phone and it was found legal to unlock, and was grateful it happened to hit there. Not that I'm doing anything wrong, but it's nice to have divine providence in helping preserve my rights. :-)
Just keep your eyes closed and facial recognition unlock should not work on iPhone. Can they compel you to open your eyes?
Only during a border search by CBP or HSI are you required to open your phone(under border search authority which is much more lenient than Title IV). But in recent years, it is much harder to get approval to "dump" a phone by CBP supervisors(Meaning your phone data like pics and texts will be downloaded). If you do NOT give your password, your phone might be seized and possibly brute-forced. Eventually, you'll get it back.. Eventually
You should not have to verbalize or write down or otherwise communicate your passwords. I can't see how this requirement from the government in a criminal matter could ever be considered as something that is not within the scope of the 5th amendment.
This is something that should be as plain as day. The fact that some courts disagree or might disagree is very very sad and scary, especially in this age of big brother.
This is also against the 1st amendment freedom of speech includes freedom from compelled speech. I believe other courts have ruled on this that pressing a button on a phone is considered speech and is thus protected. In addition, there is no need for the prosecution since they have access to resources that can bypass or overcome passcodes. Since they have the ability to overcome passcodes I find it hard to believe that a court is going to expand their powers in such a slippery slope situation.
They might use abuse ,neglect and or intimation ( questionable if not illegal ) w/o council.
Another consideration about people who flee cops would be the three strikes laws in many states.
This creates a situation where a person could have 2 strikes and then get a 3rd strike and go away for a long time over a minor thing like a marijuana cigarette.
As far as unlocking phones, this gets worse with face ID and fingerprint unlock.
They can just shove your finger on the phone, or put the phone in your face.
The iPhone when turned from an off state requires the passcode to start the phone. The facial recognition doesn't work until the passcode is entered.
They can keep it on a charger
@@Rhaspun my iPhone only required my face. Now I have changed it and it required only a code.
The interesting thing is that my iPhone doesn't use a fingerprint, but facial recognition - but if I reboot my iPhone, the facial recognition won't work until I put in my pass-code. I wonder if Apple did this in order to defeat the method you mentioned; recreating the fingerprint or face won't work anymore. You have to have the pass-code if the phone is off. Of course, most cell phones are left on all the time, so there's that.
It is by design. Simply holding the power button till you get to the shutdown screen disables Face ID and the fingerprint reader.
I am aware that this is very serious. But, those of us with a sense of humor I wanted to tell something that happened to our daughter a few years ago. While she and her boyfriend were out one time he got pulled over for speeding. After the officer pulled them over and her boyfriend rolled down his window a bug flew in the car. Our daughter has always been terrified of bugs or any kind. The first thing she did was bolt out of the car and started screaming and running as fast as she could trying to get away from that poor bug. The officer asked her boyfriend what was going on ,and asked if she was alright. He said, "She's just terrified of bugs." They both laughed and the officer let him go so that he could catch up with her while she continued running down the road. lol! I thought someone here with a good sense of humor could use a laugh.
wow! now-a-days, they Taze first, and ask questions later! Good that they were level headed cops.
I’ve always said that even though Face ID and finger print locks are very handy, it’s way too easy to force that open if they have you present.
Not just the cops. If you’re someone who travels in less friendly areas of the world, a kidnapper could easily force such a thing.
I never use those features, I do the old school 6 characters and my phone locks when not in use. I feel better knowing my memes are well protected.
Same here. I'll not use those "convenient" features.
If I'm kidnapped in a foreign country, access to my phone is near the bottom of my concerns.
Fingerprints are the one password you can’t change without injuring yourself.
Absolutely. Yubikeys are the same thing.
I've never activated facial or fingerprint ID for my phone. less convenient but more secure
Not sure what phone you have. I use both facial and fingerprint ID on my phone(a Samsung). Thing is, if just fingerprint is enabled it's every 3 days, with facial recognition on it is every 24hr biometric login is completely disabled. It's super easy to enable again, you just have to enter your password and it all works again. So if they seize your phone and you have facial recognition and fingerprint ID enabled, they have at a maximum, 24 hours to have that warrant and force you to put your finger on it or whatever before those login options are disabled. Personally I like that it got setup like that.
@@kurtwetzel154 that's what he said, he said a password is more secure than face/fingerprint. You said face/fingerprint is less secure than password. That's exact same thing, you agree with each other.
I see this come up now and then and have to wonder, what if someone pretends to comply and gives them an incorrect password? Swears that it is correct, maybe even goes so far as to insinuate or claim that the phone has been tampered with when it doesn't work?
That is very interesting! So when a person gives a testimony at their own trial and they are "compelled" to speak the truth and nothing but the truth that is because they have volunteered to give testimony and therefor given up a portion of their 5th amendment right? I guess I never really thought about it but assumed they could ask you what happened and then get you for perjury for lying or omitting the truth. Thanks for the video!
The last I checked you can still "refuse to answer on the grounds it will incriminate me".
First off, I love your videos! Great explanation of the law in layman's terms. The part you explain about the basic giving up the passcode, how it can be unconstitutional and requesting to basically tell law enforcement whats in your mind with regards to the passcode. Well my main concern would be the violation of mine and others privacy rights. Some of us have intimate videos/photos that might be of the person that owns the phone or device. Also might have images of a spouse or boy/girlfriend. Thats where they would be violating others privacy rights. There could be financial status information thats none of thier business also. 🤔 If a law enforcement officer asked me to give a passcode, that would be a major concern for me and any consenting adults that let me have their photos/videos with the trust that nobody is to view them. This issue has been raised with police getting whats called a cell tower dump. They can put a request in to a judge for a block of time that a crime occurred and I imagine with enough probable cause that the police believe a phone call/text went through a particular cell tower, the judge grants them the warrant. Here's the problem, I'm sure you've heard of it. The police now have permission to go through every single call/text that went through that tower. If its in a metro area, that can be thousands of calls and texts.
They only are concerned with maybe one incriminating call. Citizens against this activity have been trying to stop this. Some people have this odd belief that they are law enforcement so they have the right to veiw innocent intimate photos/videos of people. In reality, they aren't any different than any other human being. I live in a small town policed by county Sheriffs. Everyone knows the Sheriffs here, items of this nature could be rather embarrassing.
You'd think with all the technology that they could pin the call down to a single number. Maybe they have by now, it was a few years ago I read about this privacy issue. I think they can, it might be an inside loophole not intentionally created with the system. I've known of a gal that had the police stop at her house demanding her cellphone. They didn't ask for passcode because its Android and the police have cyber techs that can crack into them. They put her phone in an evidence bag, gave her a property receipt. She did it without incident. This all had to do with her boyfriend being in a car going through state line and they found drugs in door panel. Her boyfriend was a passenger but was taken into custody also. The cops wanted her phone probably to see if and how much involvement he had with the driver "running drugs". Just by conversations like he had knowledge beforehand of his arrest. I assume he played, "I didn't know the car was loaded with drugs!" Lol🤣
Again great videos !
How dare I not give up EVERYTHING to the immature cops who WILL dive through my entire life, not just my messages or other single thing they want. They want your whole life, everything. Turn off finger and face and have a min of 6-8 digit pin or pattern
I lost my passcode in an unfortunate boating accident.
Funny thing is I have a password that only activates when I take out, replace, or swap the SIM card and I genuinely can not remember what that code is.
So if I knew I was going to be arrested it would take about 10 seconds for me to make sure they had to use a different method to access the information on my phone.
lol
*Let's go out on a limb.*
*So... if I'm at a place where an active shooter is letting loose, people fighting and I start running away because I don't want to get shot, hurt, etc. law enforcement can legally conclude that me and anyone else running must/may be involved in what was happening because only guilty people would run from a crime scene.* 🤔
No, that would be asinine. No jury would buy it, no judge would be dumb enough to allow it and no prosecutor would do that. Just because they can do it, doesn't mean they will.
Now if you also happened to be carrying a rifle, wearing a ski mask and shouting Let's Go Brandon! as you were running away from the scene, I'm sure the police would use that as justification for shooting you in the back.
To officers responding to such a situation, EVERYONE is a potential threat until determined otherwise. "Legally conclude" is what courts, not cops, do. Cops only need to have probable cause.
I like your tee shirt. Always wanted to attend and graduate for my naval career.
As usual, you always give solid advice.
If there's information on the phone that would convict someone of a serious crime, I think they'd rather be held in contempt than give up the code.
Also, this is why passcodes are better than facial recognition if security is a concern.
"I forgot my password. Good luck PROVING that I didn't."
I don’t recall the specific case but I recall a case from a law class which stated a person may walk away from the police and may also run as running was simply walking fast. This may not have been a Supreme Court case but it may have been a NYS Appeals case or one of the 2 federal districts that cover NY. I have seen cases where courts have upheld biometric opening of phones, i.e. Touch ID and Face ID, but which specifically preclude pins and passwords. I strongly am against law enforcement accessing my phone, regardless of guilt or innocence, as there is simply too much data on the phone; said data should be owned and controlled by the phone owner. I took a training with the Secret Service regarding cyber security, smart devices, and social media some years back and was amazed at just how much data is out there both on devices and in the ethos; one of the take always was a sniffer, a small USB flash drive that when inserted into a computer would automatically download massive amounts of hidden data. The only reason I took the training was because our sex crimes officer wasn’t at all tech savvy and while I never used the sniffer I did use the knowledge acquired regarding phones, Facebook, and Twitter which came in quite handy during investigations. After the training I upped my personal cyber security and practices as I want aware of just how much data was out there, and that was with me being careful, or what I thought was careful before. As a side not I’m not letting the police into my house or vehicle without a warrant, I’m not submitting to an interrogation without an attorney, and I’m not “going to the station” unless and until I’m under arrest, at least in a formal; I tell my family the same thing because while I know most LEOs are good there are bad ones out there and once you’re in the “system” you’re never truly out.
For this exact reason I do not have facial recognition set on my phone. If the police take it (as they will if they detain you) they cannot hold it to my face to open the phone. A smooth trick is carry a photo in your wallet of someone else. If you forget your password, code you can show the picture in the wallet to unlock the phone. Just make sure it is a clear and neat photo.
My plan has always been to disable face ID by clicking the power button five times and then playing dumb and claim I don't know why it won't work and that I forgot my passcode. I doubt I'll ever need to though and I have no idea if it would work.
Haha forgot about that.
My phone has a a feature to disable biometrics called "lockdown mode", and is accessed via two presses. I imagine I'll lock it if I'm every pulled over or otherwise expect an encounter with police. It also auto-engages every few days.
@@weldabar that's also a very good idea when going through airport security. They can make you unlock via biometrics but not via passwords.
Reboot the phone. When phone boots up you have to enter passcodes and no biometrics will work until passcode is entered.
@@strangerland9791 Yeah same thing, but in the case of the iphone the 5 quick clicks is easier and can be done while hiding in the pocket. Cheers.