Originally published at: https://boingboing.net/2020/08/11/nj-supreme-court-rules-you-don.html
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Should be an interesting Supreme Court case in a year or two.
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What about my filing cabinet? Do I have a constitutional right not to unlock that?
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I would imagine you could be compelled to unlock a file cabinet containing documents you were required to produce by a court order. Seems less likely a cop could make you open it without a warrant or at least some clear case of probable cause.
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I’m not sure, but I imagine the distinction in the eyes of the court is that you can physically get in to a filing cabinet without that much effort, but getting in to a locked and encrypted phone is quite difficult.
Absolutely ridiculous either way, though, this needs to go to the Supreme Court. You definitely should not be able to be forced to unlocked your phone.
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Should be easy enough to have an “unlock after wiping all user data” password.
Hint,hint.
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I suppose I can agree that it doesn’t violate the Fifth Amendment, since you are not unlocking the phone under oath, but how does it not violate the Fourth?
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And yet my DNA, my breath, tissue, etc can be used against me…
I have often felt the right against self incrimination was way too narrowly interpreted.
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You will have to weigh the potential consequences of whatever crime it is to destroy evidence in the investigation if you use the auto wipe password.
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“I don’t think I’ll vote in the off-year election. It’s only some local judges and school boards and stuff.”
We get what we deserve.
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These are cases where someone is in custody, or a warrant has been obtained. Probable cause has already been established, so the 4th amendment issues don’t come into play. (Unlike some of these stories about demanding passwords at border crossings, which certainly do seem like 4th amendment violations.)
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If you backup your phone, it wouldn’t be destroyed, it just would no longer be available locally on the phone. So they would have to get a warrant to access it from your home or computer, or through your service provider/cloud storage provider.
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This was my very question. Thanks.
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So you get to choose between a contempt of court and/or obstruction of justice charge and whatever the charge would be if you actually unlocked it for them? Seems like it would be a judgement call for some criminals.
There’s only one way to fix this and be sure about it…
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“Officer, I will unlock this phone if you order me to, but unlocking it will wipe its contents.”
“Unlock it so that it won’t be wiped!”
“Officer, I cannot do that. Only my lawyer has the key to enable a data preservation unlocking.”
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“I guess we’re adding obstruction of justice, destruction of evidence, tampering with evidence, and damage to official police equipment to the charges.”
“Wait, what damage to police equipment?”
“The dent your skull is about to put in my baton.”
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And getting a warrant forces them to describe what information they are looking for and why they think it will be on your phone.
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That’s always a possibility, of course. They can (and as we’ve seen, often do) just make up “evidence.”
However, if your lawyer has custody of confidential materials it’s a whole lot harder to confiscate them. This is a very real consideration for a lot of company confidential material that we saw in previous Administrations were collected under the pretext of national security and then turned over to favored US corporations. Likewise with privileged materials like legal work product. If the person carrying a phone is a lawyer (to pick one example) then refusal to hand over the data gets hard to prosecute and self-destructing files become a whole lot easier to defend,
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It would very much depend on the circumstances of the particular case. I would think that ordering the phone to be opened for a general search would in most cases be overbroad, and a 4th amendment violation. Only exigent circumstances would seem to justify a search like that, as opposed to a more specific warrant for say, text messages between the phone’s owner and person x.
