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A comment on Forcing suspects to reveal phone passwords is unconstitutional, court says.

Re:Forcing suspects to reveal phone passwords is unconstitut... by zipfle on Friday September 25, 2015 @08:46AM (#10277799)
The guy quoted at the end seems to think it's the passcode itself that would be incriminating, rather than the contents of the phone. Weird. I've seen a theory that compelling someone to disclose a password can be incriminating because it is the same as asking them to admit that they stored the data in the first place, and obviously there's a case to be made that compelling disclosure of the data on the phone could be self incriminating, but the idea that the password would be something like yesiinsidertraded4 is new to me.

Edit: I missed the part where he's a former federal prosecutor. Mystery solved.

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Re:Forcing suspects to reveal phone passwords is unconstitut... by avar on Friday September 25, 2015 @09:57AM (#10278133)
This opens up the possibility for an interesting defense, what if I make my password contain the coordinates of those illegal drugs I buried?
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Re:Forcing suspects to reveal phone passwords is unconstitut... by Vexs on Friday September 25, 2015 @10:11AM (#10278238)
Well, that was already covered under "no forced self-incrimination" AFAIK.
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Re:Forcing suspects to reveal phone passwords is unconstitut... by CrossWired on Friday September 25, 2015 @02:41PM (#10279896)
He has also revised his opinion on the matter earlier today:

https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

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Re:Forcing suspects to reveal phone passwords is unconstitut... by Ensorceled on Friday September 25, 2015 @09:51AM (#10278101)
"If we disbarred the defence attorney, then they would't have client/lawyer privilege"
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Re:Forcing suspects to reveal phone passwords is unconstitut... by FireBeyond on Friday September 25, 2015 @12:43PM (#10279179)
Even then, that's not retroactive. It's your conversations that are privileged, not you. Removing you as the person's attorney doesn't make the conversations you had as their attorney not subject to privilege.
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Re:Forcing suspects to reveal phone passwords is unconstitut... by Lawtonfogle on Friday September 25, 2015 @10:42AM (#10278424)
The location of the body isn't the evidence, it is the body found there that is the evidence. This is why forcing someone to tell the location of the body and holding them in jail until they do is perfectly fine. Except that would be unconstitutional.
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Re:Forcing suspects to reveal phone passwords is unconstitut... by tormeh on Friday September 25, 2015 @10:53AM (#10278502)
The massive difference being that you might not have buried the body at all, but that there is definitely your phone.
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Re:Forcing suspects to reveal phone passwords is unconstitut... by MacsHeadroom on Friday September 25, 2015 @10:59AM (#10278533)
No, there is definitely a place (in fact, there are lots of places)- and it could have a body.

The fact that you have a phone, which could contain something, doesn't make the phone case any different.

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Re:Forcing suspects to reveal phone passwords is unconstitut... by Lawtonfogle on Friday September 25, 2015 @11:19AM (#10278639)
Which you might not have the password for. You could've recently changed it and forgotten it (I've had to reset phones of friends and family who have done this). Or you never locked it but someone else did. Or a number of other situations where the password, like the body, might not exist.
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Re:Forcing suspects to reveal phone passwords is unconstitut... by monochromatic on Friday September 25, 2015 @10:02AM (#10278167)
I don't know enough about this issue to have a real opinion. But I know that Orin Kerr is a smart guy who I usually agree with, so I'm inclined to give his analysis some weight.
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Re:Forcing suspects to reveal phone passwords is unconstitut... by ikeboy on Friday September 25, 2015 @10:52AM (#10278495)
Do you have any passwords that would be embarrassing to you if they came out? Can you imagine someone that breaks the law might have an encryption password that was incriminating?
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Re:Forcing suspects to reveal phone passwords is unconstitut... by 15155 on Friday September 25, 2015 @01:27PM (#10279435)
That's actually an interesting thought:

If my password is "iKilledColonelMustardWithACandlestick" - and it's actually an incriminating fact, how does that factor into potentially self-incriminatory discovery?

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Re:Forcing suspects to reveal phone passwords is unconstitut... by scintill76 on Friday September 25, 2015 @11:26PM (#10281984)
This sounds too much like something Barry Zuckerkorn would come up with, so maybe not a good idea. http://arresteddevelopment.wikia.com/wiki/Barry_Zuckerkorn
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Re:Forcing suspects to reveal phone passwords is unconstitut... by Lawtonfogle on Friday September 25, 2015 @03:34PM (#10280203)
What if it was for a very minor crime? Say you stole a quarter from a friend's home. Still a crime, no?
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Re:Forcing suspects to reveal phone passwords is unconstitut... by wang_li on Friday September 25, 2015 @05:06PM (#10280691)
They offer immunity for the crime exposed by the password and thus you are required to disclose.

So make sure that your password is an admission of whatever crime for which your phone contains evidence.

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Re:Forcing suspects to reveal phone passwords is unconstitut... by ikeboy on Friday September 25, 2015 @06:25PM (#10281085)
They offer immunity for the crime exposed by the password and thus you are required to disclose.

Does it work that way? Can you legally compel self-incriminating speech as long as you offer immunity?

If that was true, why wouldn't it be used all the time to incriminate other people? Currently they need to get the subject to agree to such a deal, or so the impression I get from the media is.

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