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Re:Feds Can't Force You to Unlock Your iPhone with Finger or... by rayiner on Tuesday January 15, 2019 @12:21AM (#18909018)
It’s okay if you think we should not force people to unlock their phones pursuant to a criminal investigation. But it’s disingenuous to paint this as an attempt to “disregard” the 4th and 5th amendments. The Supreme Court in the 1950s and 1960s expanded the scope of those amendments far beyond the text. They turned the 4th amendment into a general purpose “privacy” amendment, even though the amendment doesn’t use that word or anything nearly as expansive. And they took the 5th amendment, which refers only to forcing someone to testify against themselves in a criminal case, and turned it into a broad protection against self incrimination. But that amendment doesn’t use the phrase “self incrimination” or anything nearly as broad.

This is not novel. It’s always been the rule that the police can force you to turn over evidence in your possession, even though they can’t force you to serve as a “witness” against yourself. The idea that turning over a password is like forcing someone to testify against himself because it involves a mental recollection is already a very stretchy interpretation of the 5th amendment. Extending that even further to situations that aren’t testimonial in any way (Face ID or Touch ID) is hard to defend as a matter of Constitutional interpretation (even if you think it is good policy).

The background principle of the law is that courts are entitled to all the evidence so they can find the truth. The amendments are exceptions to those rules created for specific purposes. But they are exceptions; they are not the rule. To the extent that anyone is trying to “bypass” something, folks reading those amendments unreasonably broadly are trying to bypass the general rule in favor of discovering evidence.

Re:Feds Can't Force You to Unlock Your iPhone with Finger or... by foxhill on Tuesday January 15, 2019 @01:36AM (#18909233)
bear in mind that whilst the scope of those ammendments may have been, for want of a better term, “extended” (SC sets precedent for interpretation, as far as i’m aware, i.e. the amendments do not actually change), you must also bear in mind that the scope and power of the government has expanded incredibly since they were written.

the concept of privacy, outside of say, what a married couple do in the bedroom, didn’t really exist when the constitution was created.

devices that are essentially extensions to ones “self” in the digital world couldn’t even have been imagined, let alone the rights required to make that one as as free as the america that was being created.

Re:Feds Can't Force You to Unlock Your iPhone with Finger or... by rayiner on Tuesday January 15, 2019 @01:43AM (#18909262)
Your premise simply isn’t true. Privacy as a concept did exist, including in the law, for example in connection with correspondence and diaries. If you read those materials from that time, you’ll see that they were in many cases far more intimate than what you might find in an iPhone today. (People used to record their private thoughts in their papers. Today, people usually don’t leave a record of things that they were thinking but never communicated to someone else.) People also had private financial and legal records, as they do today.

And the 4th amendment did protect those things. But those protections also had limits. The police couldn’t get your diary from your desk without a warrant. But they were entitled to it with a proper warrant. The fact that you recorded your deepest thoughts and intimate affairs on a phone rather than a dairy or private correspondence shouldn’t change that.

Re:Feds Can't Force You to Unlock Your iPhone with Finger or... by foxhill on Tuesday January 15, 2019 @10:49AM (#18911970)
note that the interception of most correspondence, e.g. mail, is still a federal offence. additionally, the record of that correspondence can easily be erased. no warrant exists to recover the contents of a burnt letter, i.e., compel someone to testify against themselves.

additionally, one would have to prove an entry in a diary was written by the person that allegedly wrote it. or even that it was owned by that person.

i feel you’re being disingenuous with regard to how much of our lives get recorded, either directly or implicitly, on our devices. concerns on this level simply didn’t exist. giving law enforcement access to your phone is allowing for some level of intrusion into your mind.

i doubt the founding fathers were thinking about how your strava runs could be used to “testify” against yourself, if you happened to be in the wrong place at the wrong time.

Re:Feds Can't Force You to Unlock Your iPhone with Finger or... by stordoff on Tuesday January 15, 2019 @03:28AM (#18909600)
Read on their own, I'd be inclined to agree - neither the 4th or the 5th on their own appear to prevent this. However, taken together, I'm not so sure. Clearly a person can be searched under the 4th, and the discovered evidence used. However, when the accused has to take a more active role (Face ID/Touch ID/password), that would seem to go towards being a witness against yourself. As such, any search under the 4th would go towards being an unreasonable search, warrant notwithstanding, as it is predicated on a potential breach of the 5th.

It's a bit of a stretch, but I don't think it's _wholly_ without merit.

Re:Feds Can't Force You to Unlock Your iPhone with Finger or... by mch82 on Tuesday January 15, 2019 @02:58AM (#18909483)
What about Ammendments 9 and 10 that leave all rights and powers to the people unless they’re explicitly given to the government?

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Re:Feds Can't Force You to Unlock Your iPhone with Finger or... by rayiner on Tuesday January 15, 2019 @10:09AM (#18911604)
What about them? The 4th amendment explicitly gives the government power to seize and search “effects” (personal possessions) given a valid warrant.

Moreover, the 4th amendment is usually applied against state police. But the bill of rights originally didn’t apply to the states (until some clever interpretation of the 15th amendment). The state governments are not ones of explicitly enumerated powers. It makes no sense to interpret the 10th amendment to keep states from doing something because it’s not explicitly enumerated in the Constitution, when the whole point is that powers not enumerated are reserved to the States by default.

Re:Feds Can't Force You to Unlock Your iPhone with Finger or... by raxxorrax on Tuesday January 15, 2019 @03:37AM (#18909658)
Unlocking your phone does give law enforcement access to more than evidence. Especially since in most cases the existence of said evidence isn't even ensured. What remains is a violation of privacy.

Unlocking a phone is just another fruit of the forbidden tree.

If you look at the last 20 years, giving law enforcement additional competency didn't improve anything.