Re:Apple’s dangerous game, part 2
by snowwrestler on Monday September 22, 2014 @10:43AM
(#8350728)
Kerr's first post claims that #2 is the current state of the law now with respect to passcodes.
In general, 5th Amendment protections do not give people the power to resist warrants for evidence. The law makes a distinction between evidence (which can be compelled via warrant) and testimony (which cannot due to the 5th Amendment). If digital information stored on a phone is evidence covered by the 4th amendment[1], then the court can compel a person to provide it, including compelling them to use their passcode.
Kerr's argument in his first post was that high-profile efforts to actively resist such warrants might lead the courts or Congress to "up the ante" by increasing the possible punishments. For example, imagine if Congress passed a law that failure to enter your passcode in a federal case results in a mandatory 10 year federal sentence (my invented example, not Kerr's). This is the legal equivalent of the "rubber hose" approach to defeating cryptography.
[1] Generally I think we probably do want it to be so treated, because it would be a strong basis for limiting the NSA's power to collect such information.
In general, 5th Amendment protections do not give people the power to resist warrants for evidence. The law makes a distinction between evidence (which can be compelled via warrant) and testimony (which cannot due to the 5th Amendment). If digital information stored on a phone is evidence covered by the 4th amendment[1], then the court can compel a person to provide it, including compelling them to use their passcode.
Kerr's argument in his first post was that high-profile efforts to actively resist such warrants might lead the courts or Congress to "up the ante" by increasing the possible punishments. For example, imagine if Congress passed a law that failure to enter your passcode in a federal case results in a mandatory 10 year federal sentence (my invented example, not Kerr's). This is the legal equivalent of the "rubber hose" approach to defeating cryptography.
[1] Generally I think we probably do want it to be so treated, because it would be a strong basis for limiting the NSA's power to collect such information.