US government breaks the 5th amendment

[straight_stewie]

16 hours ago, djdwosk97 said:

So a bit of background, the fifth amendment protects a person from self incrimination --  you can't (legally) be forced to testify against yourself. Well, a Florida court decided they were above the fifth amendment and have ordered an individual to unlock his phone. There has been at least one other case to my knowledge that determined that you can't legally force someone to give up their password as it is a violation of the fifth amendment, but there was another case where the suspect was forced to unlock his phone via his fingerprint. So there is a bit of inconsistency on the matter.

The problem is that there is some legal argument as to whether electronic data applies to any of the protections offered in many current laws. This is how the government gets away with things like the Freedom Act and the Patriot act. There is a law which states that the government cannot search or seize your personal effects period, even if they are locked in something like a P.O Box. This law is very generalized and should, by all logic apply to digital data. However it does not.

The deal is that the US Government doesn't give a shit about you, me, or our rights, and the only time this becomes apparent is in the digital realm, simply because laws have not caught up with the new technologies yet.

[79wjd]

29 minutes ago, straight_stewie said:

The problem is that there is some legal argument as to whether electronic data applies to any of the protections offered in many current laws. This is how the government gets away with things like the Freedom Act and the Patriot act. There is a law which states that the government cannot search or seize your personal effects period, even if they are locked in something like a P.O Box. This law is very generalized and should, by all logic apply to digital data. However it does not.

The deal is that the US Government doesn't give a shit about you, me, or our rights, and the only time this becomes apparent is in the digital realm, simply because laws have not caught up with the new technologies yet.

I fully understand why the government wants access, I just think it's unconstitutional. 

 

And I'd take that a step further and say that it can be seen in more than just tech-related laws. Some politicians are genuinely good, but most are corrupt and or have their own agenda, which likely doesn't align with the general populous. 

 

[leadeater]

7 hours ago, djdwosk97 said:

I fully understand why the government wants access, I just think it's unconstitutional. 

I think a good approach is a court order to unlock the device and temporarily remove the pass code, in conjunction with a warrant for the device in the first place. If there is enough compelling evidence that there is pertinent information on a device then there should be no issue in getting the court order to unlock it, which you could choose to refuse and accept those consequences.

 

This way you are not giving over your pass code and complying, or not, with a court ruling. We can argue for days around things like the 5th amendment and the right to not incriminate yourself (if your not in america and also have that right) but there are plenty of examples we could give which could be argued as being forced to self incriminate. Court orders to hand over other information like bank records, tax information etc which you know has incriminating evidence in but you have still been ordered to hand it over.

 

In a pure civil rights argument a court order itself could be presented as a violation of your 5th amendment, not being asked for a passcode. Meaning asking for the phone.

 

As a person from outside of the US the impression I get is the citizens of the US are far to distrusting of their government and government entities. It's a very un-united image for a country that is named the United States of America and what that name implies. Remember this is just my personal impression and I can understand why and where those feelings of mistrust come from so please don't take it as an insult or me dismissing your right to have those feelings as even myself can justify them, both for your government and even mine. I just think it is an unhealthy mindset to have and is a factor (not the only by a long shot) in many issues currently happening in the US.

[79wjd]

46 minutes ago, leadeater said:

I think a good approach is a court order to unlock the device and temporarily remove the pass code, in conjunction with a warrant for the device in the first place. If there is enough compelling evidence that there is pertinent information on a device then there should be no issue in getting the court order to unlock it, which you could choose to refuse and accept those consequences.

 

This way you are not giving over your pass code and complying, or not, with a court ruling. We can argue for days around things like the 5th amendment and the right to not incriminate yourself (if your not in america and also have that right) but there are plenty of examples we could give which could be argued as being forced to self incriminate. Court orders to hand over other information like bank records, tax information etc which you know has incriminating evidence in but you have still been ordered to hand it over.

 

In a pure civil rights argument a court order itself could be presented as a violation of your 5th amendment, not the act of then being asked for it (a passcode or anything else).

 

As a person from outside of the US the impression I get is the citizens of the US are far to distrusting of their government and government entities. It's a very un-united image for a country that is named the United States of America and what that name implies. Remember this is just my personal impression and I can understand why and where those feelings of mistrust come from so please don't take it as an insult or me dismissing your right to have those feelings as even myself can justify them, both for your government and even mine. I just think it is an unhealthy mindset to have and is a factor (not the only by a long shot) in many issues currently happening in the US.

There is a key distinction though. Being forced to hand over material evidence vs. being forced to disclose something which you have solely in your mind. If you wrote your password down on a piece of paper, then fine, you should be legally forced to turn that over. But something that is solely stored in your mind should belong to you and you alone. Imagine if you could be punished just for thinking about something illegal. Although, of course, that is a bit of an extreme. Again, I have no issue with a court getting a warrant to see your phone and breaking into it, but I think it's different to actively force an individual to give up the password (from their mind) to access it. 

 

As for the distrust, I think a lot of it has to do with shitty politicians -- we really haven't had a good candidate in decades. And on top of that, the media bias and political corruption is just so apparent that people feel like they're getting screwed no matter what happens.

[leadeater]

6 minutes ago, djdwosk97 said:

There is a key distinction though. Being forced to hand over material evidence vs. being forced to disclose something which you have solely in your mind. If you wrote your password down on a piece of paper, then fine, you should be legally forced to turn that over. But something that is solely stored in your mind should belong to you and you alone. Imagine if you could be punished just for thinking about something illegal. Although, of course, that is a bit of an extreme. Again, I have no issue with a court getting a warrant to see your phone and breaking into it, but I think it's different to actively force an individual to give up the password (from their mind) to access it. 

Yea what I meant was being ordered to unlock it yourself, remove the pass-code and then had it over. To me there is a difference between being ordered to unlock your device versus being ordered to had over your pass-code.

 

Edit:

I agree with not being allowed to forcibly make you hand over pass-codes or encryption keys, that has implications beyond the case that is being investigated so would be exceeding the limits of an investigation. 

[Yamoto42]

1 hour ago, leadeater said:

As a person from outside of the US the impression I get is the citizens of the US are far to distrusting of their government and government entities. It's a very un-united image for a country that is named the United States of America and what that name implies.

You have to remember, our (I live in America) country's very foundation was on rebellion...and resource exploitation, including by force...you start to see a pattern...

Then again, most arguments here sound to me about as reasonable as "I keep the bodies in my basement, so the government should under no circumstances be allowed to look there."

[leadeater]

24 minutes ago, Yamoto42 said:

You have to remember, our (I live in America) country's very foundation was on rebellion...and resource exploitation, including by force...you start to see a pattern...

Yea that definitely came to mind. I didn't want to focus on that aspect of the debate, distrust of government, or expand on it too much since it's fairly off topic but more than that, an extremely contentious topic to talk about but felt it was worth a mention. Such a strong focus and constant debate around the constitution and it's amendments is a puzzling thing for us outsiders to watch since basically every country has a constitution but almost never comes up in discussion ever, even when it would be applicable to do so.

 

I couldn't tell you anything at all that is on my country's constitution other than our country's name is on it, it doesn't mean I'm not patriotic it's just something that isn't covered in our schooling system or talked about in the public. I guess this is due to it not being our founding document, the Treaty of Waitangi is regarded as that for us and we have our own fair share of issues and bring that up when necessary. Difference for us is that our laws (most of them) are not related to the Treat of Waitangi or our constitution.

 

The US is a very large country in both size and population so cohesion across all states and populous is a far more difficult thing.

[Tech_Dreamer]

Honestly is anyone really that surprised at this point? You kinda expected it to happen often these days

[alicskysareblue]

On 12/15/2016 at 7:50 AM, bigneo said:

I'm not American and Personally, I think that court did nothing wrong. If you are innocent - you have nothing to hide, just unlock the phone and prove you are.

 

Why do you think this sounds complete bullshit? I mean it would sound bullshit to me too if I was in the spotlight and had something to hide to cover my own ass.

Amercain justice system doesnt run that way forcing someone to unlock based on assumption of guilt is the problem also they can use any private data against you whether or not its related

 

We have no laws about privacy when it comes to internet or celluer phones  use its a grey area that is frequently exploited by the goverment agencies and police

[LAwLz]

20 hours ago, Gali said:

What if someone has a police record and their prints on file? Couldn't that, in theory, be used to unlock a biometric-locked phone?

 

Another hypothetical - What if someone used the iris scanners (Can't remember what the patent / product is) for that biometric lock ... they could literally just make you look at a capture device or the device itself. They won't need your permission since all you can do is close your eyes. 

Yes to both of those, which is one of the many reasons why fingerprints, iris scanners and other biometric authentication methods should only be used for the username portion, never the password portion.

 

 

20 hours ago, N3v3r3nding_N3wb said:

this guy breached this woman's privacy, so why not breach his

You got to be kidding me... That's the logic of a three year old. "He hit me so that makes it OK to hit him".

Two wrongs does not make a right. An eye for an eye will make the whole world blind.

 

3 hours ago, Yamoto42 said:

Then again, most arguments here sound to me about as reasonable as "I keep the bodies in my basement, so the government should under no circumstances be allowed to look there."

Watch the video I posted earlier in the thread. It is a great explanation of why the fifth amendment is so important.

 

 

Everyone should also remember that we are not talking about criminals here. We are talking about the police forcing suspects to hand over their passwords, and there is a huge difference. With conservative estimates, about 10,000 people in the US are wrongfully convicted for serious crimes such as rape, robbery, arson, and murder, EACH YEAR.

 

It is easy to demonize criminals and say they don't deserve rights, or that they should be punished beyond what's humane, but when you remember that a huge amount of "criminals" are actually innocent then it's a lot harder (and more illogical) to be though on criminals.

[leadeater]

18 minutes ago, LAwLz said:

It is easy to demonize criminals and say they don't deserve rights, or that they should be punished beyond what's humane, but when you remember that a huge amount of "criminals" are actually innocent then it's a lot harder (and more illogical) to be though on criminals.

That and criminals do have rights too, and should. One of the key points of the justice system is not just the justice but also reformation. Prison and punishment in general has always proved to be ineffective, look at how you are supposed to train animals through positive reinforcement. Punishment doesn't work for them and it doesn't work for us.

 

Sure there will always be times when it is necessary to remove someone from society for our and even their own protection but you don't just stop there. If you do nothing but lock a person away for a period of time that will only make things worse, sure it feels great for a lot of people to see a bad person go to prison but you should want them to come out at the other end a better person.

 

Actually the best way to cover my thoughts on this is go watch John Oliver's segments about it, those videos will do an infinitely better job than I can.

[79wjd]

Just now, leadeater said:

That and criminals do have rights too, and should. One of the key points of the justice system is not just the justice but also reformation. Prison and punishment in general has always proved to be ineffective, look at how you are supposed to train animals through positive reinforcement. Punishment doesn't work for them and it doesn't work for us.

 

Sure there will always be times when it is necessary to remove someone from society for our and even their own protection but you don't just stop there. If you do nothing but lock a person away for a period of time that will only make things worse, sure it feels great for a lot of people to see a bad person go to prison but you should want them to come out at the other end a better person.

 

Actually the best way to cover my thoughts on this is go watch John Oliver's segments about it, those videos will do an infinitely better job than I can.

Our prison system is truly royally fucked up. They release rapists and murders because there isn't enough room, but god forbid you got caught with any drugs or decided to fudge some numbers or commit some other comparatively petty crime. 

 

I don't know if this is true for prisons globally, but at least in the US, prisons very often lead to even more crime after an individual is released -- partly due to how they were treated and partly due to the environment they were put in (plus the fact that they get released into the same shithole environment that led to their initial crime/incarceration). 

[Trik'Stari]

15 hours ago, djdwosk97 said:

There's a difference between getting a warrant to break into a device/safe and forcing an individual to divulge a passcode 

 

@Trik'Stari

I believe, and hope, you're correct.

I can imagine lawyers salivating over the civil rights infringement case that will stem from this. They'll make a name for themselves, and possibly get a MASSIVE payout from the government.

[Trik'Stari]

18 hours ago, SansVarnic said:

I am sorry but someone need to draw me a picture on how physical evidence whether it be on a phone or a pc is considered a breach of the fifth amendment. Its physical evidence.  He is not vocalizing admittance to a crime, he is not signing a statement of guilt. If this was all paper evidence locked in a safe it would all be the same thing and that would still be physical evidence that a judge can grant a warrant  to search said safe... 

 

Safe, paper, pc, hard drive, mobile phone = all the same thing just a different format in my eyes.

Providing material evidence that incriminates you, would likely be a breach of the fifth amendment. You can do it, but you have the right to not do it.

 

"  nor shall be compelled in any criminal case to be a witness against himself,"

 

You would, in practicality, be bearing witness against yourself, by providing evidence or testimony. Which, again, you CAN choose to do so. But you have the right to refuse to do so.

[leadeater]

Just now, djdwosk97 said:

I don't know if this is true for prisons globally, but at least in the US, prisons very often lead to even more crime after an individual is released -- partly due to how they were treated and partly due to the environment they were put in (plus the fact that they get released into the same shithole environment that led to their initial crime/incarceration). 

Far as I know that is basically globally true.

 

We have some really good reformation programs here to help prisoners reintegrate back in to society, but not every prisoner gets access to that and each prison varies in what they have in this regard. We have education programs so you can even get degrees in prison, or learn trade skills. We have reintegration communities and outreach programs and their are partnerships with businesses to find work placements.

 

One of the problems we have is the situations some of the people come from are so bad and they fall back in to it they will commit another crime on purpose to get thrown back in jail. In there you are at least feed, kept warm and to an extent safe. Others commit crimes to get back in to jail as they feel totally lost outside on their own and can't cope so prefer the order and regiment of being in prison.

[SansVarnic]

4 hours ago, Trik'Stari said:

Providing material evidence that incriminates you, would likely be a breach of the fifth amendment. You can do it, but you have the right to not do it.

 

"  nor shall be compelled in any criminal case to be a witness against himself,"

 

You would, in practicality, be bearing witness against yourself, by providing evidence or testimony. Which, again, you CAN choose to do so. But you have the right to refuse to do so.

I think you misunderstood my dilemma; I know what self incrimination is, what I don't understand is why your phone cannot be used against you. Its the same as a safe full of paperwork/evidence. People are so against a court order to unlock a phone. If court orders a warrant to search your home you have to allow access, give up the keys if you will, so how is giving up your phones password any different?

 

[79wjd]

6 minutes ago, SansVarnic said:

I think you misunderstood my dilemma; I know what self incrimination is, what I don't understand is why your phone cannot be used against you. Its the same as a safe full of paperwork/evidence. People are so against a court order to unlock a phone. If court orders a warrant to search your home you have to allow access, give up the keys if you will, so how is giving up your phones password any different?

 

Because one is a material thing (a key) whereas the other is something that is in the sanctity of your own thoughts (combination/passcode). There is a difference -- if that safe uses a combination lock, then the suspect can't be compelled to divulge the combination. Now, of course, authorities can just break into the safe -- just like they can (try) to break into a phone. But they shouldn't be allowed to force you to give up the passcode.

 

Quote

A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe

http://blogs.denverpost.com/crime/2012/01/05/why-criminals-should-always-use-combination-safes/3343/

[SansVarnic]

11 minutes ago, djdwosk97 said:

Because one is a material thing (a key) whereas the other is something that is in the sanctity of your own thoughts (combination/passcode). There is a difference -- if that safe uses a combination lock, then the suspect can't be compelled to divulge the combination. Now, of course, authorities can just break into the safe -- just like they can (try) to break into a phone. But they shouldn't be allowed to force you to give up the passcode.

 

http://blogs.denverpost.com/crime/2012/01/05/why-criminals-should-always-use-combination-safes/3343/

That makes sense. Thanks.

[Trik'Stari]

31 minutes ago, SansVarnic said:

I think you misunderstood my dilemma; I know what self incrimination is, what I don't understand is why your phone cannot be used against you. Its the same as a safe full of paperwork/evidence. People are so against a court order to unlock a phone. If court orders a warrant to search your home you have to allow access, give up the keys if you will, so how is giving up your phones password any different?

 

You don't have to give up your keys, they can break the door down or call a locksmith to open it.

 

The issue here, is that they would be forcing a suspect to provide information that ONLY that person knows, which would provide incriminating evidence. The issue here is not them searching the phone, it's them compelling a person to give up information that would lead to their own incrimination.

 

The hilarious part is, there's no reason for it. The government can open the phone if they want, but they'd rather do it this way for some reason. Just like they did with the iPhone a while back. The only reason I can conceive of for doing it this way, is to set a precedent, just like they were trying to do with the iPhone.

I give you the godfather of cyber security, explaining that there is, and never was a reason for compelling a person to give up their own password.

 

Nevermind that the FBI had access to the phone and changed the password, and then conveniently had forgotten what they changed it to....

[HughMungusCynicalAnarch]

Is there a bill of rights amendment the government HASN'T broken?

drug laws

gun control

massive spying

taking away states rights etc

 

[HughMungusCynicalAnarch]

On 12/16/2016 at 8:26 PM, Trik'Stari said:

You don't have to give up your keys, they can break the door down or call a locksmith to open it.

 

The issue here, is that they would be forcing a suspect to provide information that ONLY that person knows, which would provide incriminating evidence. The issue here is not them searching the phone, it's them compelling a person to give up information that would lead to their own incrimination.

 

The hilarious part is, there's no reason for it. The government can open the phone if they want, but they'd rather do it this way for some reason. Just like they did with the iPhone a while back. The only reason I can conceive of for doing it this way, is to set a precedent, just like they were trying to do with the iPhone.

I give you the godfather of cyber security, explaining that there is, and never was a reason for compelling a person to give up their own password.

 

Nevermind that the FBI had access to the phone and changed the password, and then conveniently had forgotten what they changed it to....

Why oh why couldn't mcafee have been the libertarian candidate instead of that idiot cuck johnson.

 

[Trik'Stari]

Just now, HughMungusCynicalAnarch said:

Why oh why couldn't mcafee have been the libertarian candidate instead of that idiot cuck johnson.

 

I really don't know why they did that. He'd have gotten the media attention. And considering that simply getting media attention is basically how Trump won.... (that and the democrats having alienated a good portion of the population with their racist/sexist behavior, as well as pushing out a more popular candidate in favor of a richer candidate)

[HughMungusCynicalAnarch]

1 minute ago, Trik'Stari said:

I really don't know why they did that. He'd have gotten the media attention. And considering that simply getting media attention is basically how Trump won.... (that and the democrats having alienated a good portion of the population with their racist/sexist behavior, as well as pushing out a more popular candidate in favor of a richer candidate)

The memes, oh god the memes that man would have made happen, even more so than trump.

[Trik'Stari]

Just now, HughMungusCynicalAnarch said:

The memes, oh god the memes that man would have made happen, even more so than trump.

Not only that, but the things he'd have done. The ways he'd have made both the republicans and democrats look like giant fucking assholes (which they are)

[RocketFarmer]

The intent of the 5th amendment is not to force the defendant to testify and not force the defendant to provide self incriminating evidence.

 

The police will manipulate the hell out of things, which is why the Miranda warning requirement was put into place.

 

Thanks to "the war on terror" the 5th amendment has been ignored and replaced with language that they can do whatever they want for the greater good.  Or language they can manipulate that essentially undermines the Constitution. 

 

The court forcing to turn over a password does violate the 5th, but no one has yet challenged that to the point where the Supreme Court has made a decison.  Actually there is more likely to be a Supreme Court challenge over the violations of the 1st Amendment for the Patriot Act and whistle-blowing activities (crackdown by the government against reporters who have revealed government surveillance programs).

 

Most Democrats and about half of the Republicans do not care about the US Constitution, and prefer to have the government do what they will.  So get a dictator in there and the US is screwed. 

 

Under the current law they can, and do, hold people indefinitely without any charges.  They can, and do seize people without going through any of the proper constitutional procedures.  And thanks to the current US President, they can and do assassinate anyone for any reason or no reason at all.  They will have a narrative written on the person, and most will go along with it wthout question.

 

Yeah, Freedumb!