Category Archives: Fifth Amendment

New ruling may affect police access to smartphones
A federal judge in Virginia ruled that fingerprints are not protected by the Fifth Amendment, which could affect police access to fingerprint-protected devic...

By: CBS This Morning

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New ruling may affect police access to smartphones - Video

Last week, there was a lot of press coverage about a Virginia court ruling on how the Fifth Amendment applies to bypassing a smart phone passcode. The ruling hasnt been available before today, but here it is: Commonwealth v. Baust, via Marcia Hofmann. Its a short opinion, just five pages, so its a quick read. Unfortunately, though, the opinion doesnt address the really important issue raised by compelled decryption: Whether the government can force the defendant to enter in the passcode. Its not the courts fault that the opinion didnt reach that, to be clear. The government never asked for an order compelling the defendant to do that, so the court didnt decide it. Heres a quick rundown of the facts, the law, and my reaction.

The defendant has been charged with assaulting a woman. There is reason to believe that the defendant videotaped the assault and that there is a copy of the video on the defendants passcode-protected smart phone. The state wants the defendant to be ordered either to disclose his passcode so the police can enter in the passcode to unlock the phone themselves, or else to give up his fingerprint to unlock the phone directly using the phones fingerprint sensor.

The court reaches a split ruling. First, there is no Fifth Amendment problem with forcing the defendant to provide his fingerprint. Second, the defendant cannot be forced to tell the government his passcode because that would be forcing the defendant to disclose the contents of his own mind. Most importantly, the court rules that the foregone conclusion doctrine doesnt apply because the police dont know the passcode:

Contrary to the Commonwealths assertion, the password is not a foregone conclusion because it is not known outside of Defendants mind. Unlike a document or tangible thing, such as an unencrypted copy of the footage itself, if the password was a foregone conclusion, the Commonwealth would not need to compel Defendant to produce it because they would already know it.

In dicta, the Court adds that the defendant could not be compelled to hand over a decrypted version of the video believed to be on his phone. Thats true because it is not a foregone conclusion that the video exists or is on the phone. The defendant cant be forced to effectively testify as to that by producing a decrypted version of the video.

This is just a state court trial ruling, not an appellate decision. So its interesting more for its reasoning than its precedential value. With that said, here are some thoughts on the reasoning of the case.

First, the courts ruling on divulging a fingerprint is easy. Theres obviously no Fifth Amendment problem with that. On the governments request for the passcode, the opinion is frustrating because the governments request was poorly framed. In this case, the government doesnt need to know the defendants passcode. It only needs to bypass the passcode gate, either through the fingerprint or by having the passcode entered in by the defendant. If the government couldnt get into the phone with the fingerprint, then, the sensible request would be for an order to have the defendant enter in the code rather than an order disclosing it to the government. But the government didnt ask for that: Instead it asked for an order that the defendant tell them his passcode.

Whats the difference? Having the defendant enter in his passcode would minimize the Fifth Amendment implications of the compelled compliance, as it would not involve disclosing the potentially incriminating evidence of the passcode itself. The passcode itself could be independently incriminating, at least in some cases. Imagine a conspiracy case in which members of the conspiracy use a common passcode. Proof that a suspect used that exact passcode on his own phone would be incriminating evidence, as it could help to show membership in the conspiracy.

Because the passcode itself could be incriminating, the smart way to limit the Fifth Amendment problem is for the government to ask for an order compelling the target to enter in the passcode rather than to divulge it to the police. That way, the government gets the unlocked phone but never gets the passcode. If the defendant has to enter in the passcode rather than tell it to the police, the testimonial aspect of complying would only be admitting knowledge of the passcode, which would very likely be a foregone conclusion in a case where the phone is used heavily by that person. But the government didnt ask for that here, so the court didnt consider how the Fifth Amendment would apply in such circumstances.

Notably, the court does address in dicta whether it would be incriminating for the defendant to hand over the unencrypted video believed to be on the phone. But forcing the defendant to hand over the unencrypted video is quite different from having him enter in the passcode to unlock the phone. Being forced to enter in the passcode to unlock the phone amounts to being forced to say, I know the passcode for this phone. On the other hand, as the court recognized, being forced to produce the unencrypted video amounts to being forced to say much more, such as I admit that the video exists; I admit that this is the video; I know where that video is; and I admit that I know what video youre talking about. Being forced to produce the video raises a host of Fifth Amendment issues that merely entering in the passcode does not.

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Volokh Conspiracy: Virginia state trial court ruling on the Fifth Amendment and smart phones

04 November 2014

The rate of goods and services tax (GST) on tourism services in the Maldives increased to 12 percent from November 1, 2014.

The change was introduced through the First Amendment to the GST Act (Law Number 6/2014). As a result of the change, persons who are required to file GST returns quarterly must comply with special reporting requirements.

In addition, in a last minute amendment published on October 27, 2014, authorities in the Maldives intend to further amend the GST Act to provide that the rate only applies to goods and services supplied exclusively to tourists. Goods and services subject to the change listed as tourism services in the law include supplies by shops, diving schools, spas, water sports facilities, and other such facilities in tourist resorts, tourist hotels, guest houses, picnic islands, tourist vessels, and yacht marinas authorized by the Tourism Ministry.

Alongside the rate increase, the Maldives has also revoked the Tourism Tax a USD8 per night charge on accommodation also from November 1, through the Fifth Amendment to the Maldives Tourism Act (Law Number 5/2014) of February 6, 2014.

The last minute amendment also adds to the list of tourism services supplies of goods and services to tourists by domestic air transportation service providers. It clarifies also that the term "tourists" refers to persons entering the Maldives under a tourist visa issued under the Maldives Immigration Act.

The increase is part of a package of measures intended to generate higher revenues for the islands. The rate on tourism services was 3.5 percent from December 31, 2011, when the GST regime was first introduced; 6 percent from January 1, 2012; and 8 percent from January 1, 2013. Other measures to broaden the GST base have included the introduction of GST on telecom services since May 1, 2014. From this date, GST was also imposed, also at a rate of six percent, to sales of immovable property. The leasing of immovable property remains exempt.

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Fingerprints: iPhone Users Forfeit Fifth Amendment.
Court rules fingerprints have no fifth amendment right. What does this mean for the rest of our biometric data? .

By: TheRiverMersey

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Fingerprints: iPhone Users Forfeit Fifth Amendment. - Video

A person suspected of a crime cannot be compelled to divulge to authorities the passcode that would unlock his smartphone. To allow this would be a clear violation of the Fifth Amendment to the Constitution.

But a fingerprint doesn't share those same protections. At least according to a recent ruling from a Circuit Court judge in Virginia, who found that compelling a suspect to unlock his fingerprint-protected smartphone is just fine and dandy.

There's some logic here, but it's pretty badly flawed. The thinking behind the decision: The Fifth Amendment to the Constitution states that an individual cannot be forced to testify against himself. As such, compelling someone to fork over a smartphone's passcode -- which would amount to testimony -- would violate the Fifth Amendment.

But a fingerprint, the judge said, is another story. It's more like a key, which the law has long allowed authorities to obtain from a criminal suspect.

While one can understand the legal distinction that forms the basis for the ruling, it doesn't long hold up under scrutiny.

The Fifth Amendment states, in part: "No person shall be ... compelled in any criminal case to be a witness against himself." This is the right that people are invoking when they refuse to testify on the grounds that they may incriminate themselves.

So legally, a passcode is a kind of testimony, but a key isn't.

Which is fine as far as it goes. But this is exactly where the judge went wrong.

A fingerprint can be akin to a key -- or not. In the matter at hand, what it is, in effect, is a replacement for a passcode, which is information that used to be inside the user's head. If we'd once unlocked our phones with physical keys -- like those that open a door or start the car -- the reasoning would make sense, as the fingerprint would be a replacement for same.

But that's simply not the case. We used to unlock our phones with information in our heads. And that information was protected by the Fifth Amendment. One's fingerprint, simply a replacement for the old memorized pass code, ought reasonably be afforded that same protection.

The rest is here:
Editorial: Applying the Fifth Amendment in the era of smartphones

All Your Fingerprints Are Belong To Us: iPhone Users Forfeit Fifth Amendment
Court rules fingerprints have no fifth amendment right. What does this mean for the rest of our biometric data? Follow Alex on TWITTER - https://twitter.com/RealAlexJones Like Alex on FACEBOOK...

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All Your Fingerprints Are Belong To Us: iPhone Users Forfeit Fifth Amendment - Video

Your Fingerprints Belong To Us: Iphone Users Forfeit 5th Amendment 1
Court rules fingerprints have no fifth amendment right. What does this mean for the rest of our biometric data? Stay in the know - Follow Alex on Twitter https://twitter.com/RealAlexJones Like...

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Your Fingerprints Belong To Us: Iphone Users Forfeit 5th Amendment 1 - Video

Civil Rights and Civil Liberties - Fifth Amendment - Shh! The Right to Remain Silent
Civil Rights and Civil Liberties is a free online course on Janux that is open to anyone. Learn more at http://janux.ou.edu. Created by the University of O...

By: Janux

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Civil Rights and Civil Liberties - Fifth Amendment - Shh! The Right to Remain Silent - Video

Apple and Google have taken steps recently to let users protect information stored on smartphones even from law enforcement. It turns out there may be a fingerprint-sized gap in that plan.

A Virginia Circuit Court judge ruled Tuesday that police officers cannot force criminal suspects to divulge cellphone passwords, but they can force them to unlock the phone with a fingerprint scanner.

If applied by other courts, the ruling could become important as more device makers incorporate fingerprint readers that can be used as alternatives to passwords. Apple introduced the technology last year in its iPhone 5S and Samsung included it in its Galaxy S5.

When those phones arrived, lawyers said users might be required to unlock the phones with their fingerprints. More recently, Apple and Google said they had changed the encryption scheme on the newest phones using their operating systems so that law enforcement cant retrieve the data. FBI Director James Comey criticized the companies, saying were allowing users to place themselves above the law.

The Fifth Amendment to the U.S. Constitution gives people the right to avoid self-incrimination. That includes divulging secret passwords, Judge Steven C. Frucci ruled. But providing fingerprints and other biometric information is considered outside the protection of the Fifth Amendment, the judge said.

The ruling came in the case of David Baust, an emergency-medical-services captain accused of domestic abuse. Police obtained a search warrant for Bausts phone and asked him to unlock it so they could look for video evidence against him. Baust refused, citing the Fifth Amendment and his right to protect his privacy; Baust said police could search for other, embarrassing items on the phone that are unrelated to the case.

In the wake of Judge Fruccis ruling, Baust does not have to provide his password, but he is required to place his finger on his iPhones fingerprint sensor.

Baust planned to comply Friday morning at a police station in Virginia, his lawyer, James Broccoletti said in an interview. The meeting was postponed because the detective needed to attend to a sick child.

Baust will head to the police station on Monday morning instead, but Broccoletti believes police still may be unable to unlock the phone because it should require a password, in addition to a fingerprint, once it has been shut off.

If they are unable to gain access to the phone, prosecutors in the case could appeal the password ruling to the Virginia court of appeals.

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Judge Rules Suspect Can Be Required To Unlock Phone With Fingerprint

schwit1 writes with news of a Circuit Court decision from Virginia where a judge has ruled that a criminal defendant cannot use Fifth Amendment protections to safeguard a phone that is locked using his or her fingerprint. According to Judge Steven C. Fucci, while a criminal defendant can't be compelled to hand over a passcode to police officers for the purpose of unlocking a cellular device, law enforcement officials can compel a defendant to give up a fingerprint. The Fifth Amendment states that "no person shall be compelled in any criminal case to be a witness against himself," which protects memorized information like passwords and passcodes, but it does not extend to fingerprints in the eyes of the law, as speculated by Wired last year. Frucci said that "giving police a fingerprint is akin to providing a DNA or handwriting sample or an actual key, which the law permits. A passcode, though, requires the defendant to divulge knowledge, which the law protects against, according to Frucci's written opinion."

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Virginia Court: LEOs Can Force You To Provide Fingerprint To Unlock Your Phone