back to article Florida man won't be compelled to reveal iPhone passcode, yet

Florida's Fourth District Court of Appeals has granted a petition by a defendant not to be forced to reveal his iPhone passcode and iTunes password, based on the US Fifth Amendment's protection against self-incrimination. The defendant, a minor referred to as G.A.Q.L in his petition against the State of Florida, was involved …

  1. Big Al 23

    Files are not testimony

    Providing the password to an electronic device is not the same as providing testimony in a court of law. Proving a password to view the contents of an electronic device is no different than authorities searching a residence and finding documents. The info. contained on an electronic device is in essence just data files and in no way do they constitute sworn testimony. Those folks trying to escape scrutiny are trying to manipulate the fifth amendment protection to cover data which it clearly does not do. Authorities have every right to access the files of suspected criminals be they on person, on an electronic device or at a residence or work location just as with any normal investigation. The perps don't want to be convicted so they do all that they can to circumvent prosecution.

    1. Richard 12 Silver badge

      Re: Files are not testimony

      One moment while I change your phone passcode behind your back.

      The cops are on their way and will demand access to files on your phone.

      Good luck.

      That's just one of the scenarios where it doesn't matter whether you care about the privacy arguments.

      There are many others.

    2. aks Bronze badge

      Re: Files are not testimony

      In all cases, the accused is being forced to assist the accuser.

      This is the underlying basis of the fifth amendment.

      That's utterly different from searching a residence.

      The basis of this particular case revolves around whether the authorities are looking for specific evidence that they have good reason to believe is present on the device or whether they're simply conducting a fishing expedition seeing what they can find.

      1. Charles 9 Silver badge

        Re: Files are not testimony

        "That's utterly different from searching a residence."

        As I understand it, police CAN seize a key upon your person with probable cause or pursuant to arrest. Why is a password any different from a physical key?

        1. Jess

          Re:Why is a password any different from a physical key?

          It's more like knowing where the key is.

        2. John Brown (no body) Silver badge

          Re: Files are not testimony

          "Why is a password any different from a physical key?"

          Because a password isn't a physical thing? Unless you wrote it down somewhere, in which the accusers can go search for it as with other physical evidence.

        3. MachDiamond Silver badge

          Re: Files are not testimony

          "As I understand it, police CAN seize a key upon your person with probable cause or pursuant to arrest. Why is a password any different from a physical key?"

          They still can't use the key to enter your residence without a proper warrant. If they then find a safe and believe what they are looking for is contained within the safe, the original warrant must specify the safe or an additional warrant must be obtained to break into the safe. The difference with digital files are that the "safe" is really safe and may contain virtual thermite if you try to break into them.

        4. casaloco

          Re: Files are not testimony

          This isn't the police using your key to search your house. It's the police legally demanding you tell them where the body is buried, and sending you to jail if you don't tell them. Or don't know.

        5. Snorlax

          Re: Files are not testimony

          @Charles 9:"Why is a password any different from a physical key?"

          A password isn't tangible (unless you wrote it down on a Post-It).

          It's something you KNOW, rather than something you POSSESS.

          A court can't issue a search warrant for your brain. Yet.

    3. Snorlax
      Facepalm

      Re: Files are not testimony

      @Big Al 23:"Providing the password to an electronic device is not the same as providing testimony in a court of law."

      One of the fundamental principles of criminal law is that you have the right to keep your mouth shut to avoid incriminating yourself.

      This principle applies when you're in an interview room with police - you can answer "no comment" to every question.

      This applies also applies in court - you can choose to avoid cross-examination if it might show you in a bad light.

      The reason why should be obvious. The prosecution must prove its case beyond reasonable doubt, and (generally speaking) there is no requirement for the accused to help them by incriminating himself.

      TL:DR Tell the police and the judge that you *forgot* the passcode. Don't use fingerprint or face unlocking, use six digits instead of four for your passcode, and set your phone to wipe after ten failed attempts

      1. DougS Silver badge

        Re: Files are not testimony

        Don't use a passCODE at all, use a password. Then even if attacks from companies like Cellbrite that are able to reset the flash to enable them to brute force it (the hardware changes in the latest iPhones should make such flash reset based "replay attacks" impossible) still work there's no feasible way for them to brute force your password. Unless, you know, you used "password" I guess...

    4. FriendInMiami

      Re: Files are not testimony

      Files may not be testimony, but a police agent seeking access to a phone may not have warranted reasons to search the phone, either. Our US Customs and Border Patrol will take away phones and laptops at airports without articulating why. If an explanation of what is sought cannot be made persuasively to a magistrate judge, sufficient to authorize a warrant, then certainly a traveler should not be compelled to unlock a device. That is why the fingerprint-unlock or facial recognition-unlock is so fraught with peril - search can be made by a cop who wants to look and see if anything is arguably criminal, without knowing in advance what could likely be there. Let a cop walk in your unlocked front door, and see what he finds walking through your house, without needing a warrant...

      1. MachDiamond Silver badge

        Re: Files are not testimony

        "Let a cop walk in your unlocked front door, and see what he finds walking through your house, without needing a warrant..."

        The officer would still need permission to enter your house whether the door was unlocked or wide open. They will ask if they can come in and if you give them permission, you change the scenario a lot. If they can see what appears to be criminal activity in the house from your open front door, that may also give them some leeway. If there is a coffee table piled high with a white powder, a scale and a pack of little zip lock bags in plain view, you're nicked.

        1. DropBear Silver badge
          Trollface

          Re: Files are not testimony

          "If there is a coffee table piled high with a white powder, a scale and a pack of little zip lock bags in plain view, you're nicked."

          Well, there go my plans to start selling bread in DIY kit form...

          1. MachDiamond Silver badge

            Re: Files are not testimony

            "Well, there go my plans to start selling bread in DIY kit form..."

            and here I am a huge DIY bread fan. :)

            Ok, back to reruns of The Great British Bake Off. That bread lion was awesome.

        2. Charles 9 Silver badge

          Re: Files are not testimony

          "The officer would still need permission to enter your house whether the door was unlocked or wide open. They will ask if they can come in and if you give them permission, you change the scenario a lot. If they can see what appears to be criminal activity in the house from your open front door, that may also give them some leeway. If there is a coffee table piled high with a white powder, a scale and a pack of little zip lock bags in plain view, you're nicked."

          As I understand it, there are conditions. First, if a suspect is arrested IN the house, then a basic search can be conducted as part of the arrest, and evidence pertaining to the offense cited can be collected (eg. if a druggie is arrested in his house, then contraband found inside is germane and can be taken as evidence. Same for a suspect car if stopped while driving it and subsequently arrested). If evidence not germane to the arrest is found, a separate search warrant would be needed. Dragnet and Adam-12 (both based on actual LAPD incidents) touched on searches.

    5. MachDiamond Silver badge

      Re: Files are not testimony

      "Proving a password to view the contents of an electronic device is no different than authorities searching a residence and finding documents."

      Actually, no. In the US, for authorities to search a residence or other location (there are limits), a warrant is required and it has to state what is being sought and where it is believed to be. A judge has to be convinced that there is a good chance that what the police are looking for can be found and will be at the location named. Fishing is not allowed, nor is using a search warrant for one thing allowed to find something else. The case law is endless.

      Did I miss what they are hoping to find by searching the files on the phone?

      Step one: Don't put anything on your phone you don't want made public.

    6. Captain Toad

      Re: Files are not testimony

      Can a court compel you to unlock a personal safe and allow law enforcement to gather evidence from it?

      No, they can't. But there is nothing stopping them from breaking into the safe (if they can) to find evidence.

      This is the same situation, except the device is purely electronic. Law enforcement are free to attempt to access the device but should not be allowed (under any statutes) to compel the owner to unlock it.

      1. Charles 9 Silver badge

        Re: Files are not testimony

        "No, they can't. But there is nothing stopping them from breaking into the safe (if they can) to find evidence."

        But what if they learn the safe is booby-trapped and will self-destruct if anyone other than the suspect opens it? NOW can they compel the suspect to open it under threat of Destruction of Evidence?

        Guess how this can apply to an iPhone with a failsafe?

  2. onefang Silver badge

    Most of the article was about the legal to and fro. Not enough info about the actual case. Is this person a minor or a grown man? Was this minor / man the driver? Why is the contents of the phone needed, what relevance does it have to the car crash? What relevance does a pending iOS update have to the need for the passcode/words?

    1. Jamesit

      "Is this person a minor or a grown man?"

      The article says:

      "The defendant, a minor referred to as G.A.Q.L in his petition against the State of Florida"

      1. onefang Silver badge

        Yes, but the title says "Florida man...", hence my confusion.

        1. katrinab Silver badge

          If a minor is being described as a "man", that means he is black, otherwise he would be described as a "boy" up until about age 25.

        2. Snorlax
          Headmaster

          @onefang

          @onefang:"Yes, but the title says "Florida man...", hence my confusion."

          Florida Man is a term used to describe somebody who's in trouble with the law for a stupid or unusual reason.

          1. John Brown (no body) Silver badge

            Re: @onefang

            "Florida Man is a term used to describe somebody who's in trouble with the law for a stupid or unusual reason."

            And there was I thinking it was a sub-species description, something similar to Java Man or Neanderthal Man, or maybe more like Piltdown Man.

            1. Snorlax

              Re: @onefang

              @John Brown (no body):"And there was I thinking it was a sub-species description..."

              Some people do believe that Floridians are a fork on the evolutionary tree.

              See also: Floriduh

          2. A.P. Veening

            stupid or unusual reason

            The ususal, stupid reason for being on trouble with the law in Forida is being black.

        3. Waseem Alkurdi Silver badge

          Maybe he was a minor at the time, and is now an adult, given how time crawls in a court?

    2. onefang Silver badge
      WTF?

      I'll admit that I had just skimmed the original El Reg article, all that legal stuff bored me, and I was more interested in answering my questions above. So I may have missed this bit if it was there. I've now read a bit more from the recent Ars Technica article covering the same case. To quote that article -

      "Investigators argued that they needed the iTunes password so that the phone's firmware could be updated prior to actually searching the phone."

      That makes no sense to me. Um, see icon ->

    3. This post has been deleted by its author

  3. ratfox Silver badge

    What could possibly be the file that they want to access so much, and why is it relevant to a car accident?

    1. Duffy Moon

      "What could possibly be the file that they want to access so much, and why is it relevant to a car accident?"

      I assume they want to find out if he was using the phone at the time of the crash.

      1. agurney

        "I assume they want to find out if he was using the phone at the time of the crash."

        They could get that from telco records.

        1. Anonymous Coward
          Anonymous Coward

          > > I assume they want to find out if he was using the phone at

          > > the time of the crash

          >

          > They could get that from telco records.

          Not necessarily. Making/receiving a call/text, no problem - maybe less easy for receiving? Unsure what info is available at the telco, but making a call/text very easy from the billing records.

          Difficult to know for some data-based activity though. Was a load of data going in/out something to do with voice, an incoming image he had no control over, an outbound one that he did, etc etc.

      2. John Brown (no body) Silver badge

        "I assume they want to find out if he was using the phone at the time of the crash."

        If he's a minor, then if he was driving at the time, surely that's already a crime? What's a minor in the US and what is the legal driving age?

        1. MachDiamond Silver badge

          "If he's a minor, then if he was driving at the time, surely that's already a crime? What's a minor in the US and what is the legal driving age?"

          Roughly 16yo, but it varies from state to state. A driver "under instruction" can be 15 to 15-1/2 in some places. In some predominately rural areas there are restricted licenses for farm activities since driving on an official road might be necessary to get from one section of a farm to another.

        2. Charles 9 Silver badge

          "Minor" is legally defined in the US as those below the age of adulthood (set at 18 in this case). It's legally defined because of privileges (voting) and duties (military service, self-determination) that apply at that point.

          Most states set the minimum legal driving age at 16 (for historical reasons), but some states qualify this by not allowing unattended driving until they're 18.

          1. John Brown (no body) Silver badge
            Thumb Up

            Thanks for the replies.

    2. JohnG Silver badge

      "What could possibly be the file that they want to access so much, and why is it relevant to a car accident?"

      Video, taken in the period up to the crash?

  4. gnasher729 Silver badge

    There's one thing that should be changed in the article (after checking, obviously): I don't think anyone can be forced to _reveal their password_. They can (or maybe cannot) be forced to _unlock their phone_. Yes, by entering the password, but nobody has the right to see the password they enter. Of course if the phone locks itself after some period of inactivity, they may be forced to unlock it again.

    1. Alister Silver badge

      I don't think anyone can be forced to _reveal their password_.

      Not in the US, maybe, but in the UK, you most certainly can.

      1. gnasher729 Silver badge

        "Not in the US, maybe, but in the UK, you most certainly can."

        I'd like to see a link for that. I assume you actually _read_ what I wrote beyond the first sentence and didn't miss the fine distinction between revealing your password and unlocking a device.

        1. Alister Silver badge
      2. Anonymous Coward
        Anonymous Coward

        Pedant time. You cannot be forced to. There are significant consequences if you don't though.

        1. AndrueC Silver badge
          Meh

          Yeah it lies at the heart of the difference between the two legal systems. The US is (supposedly) concerned with protecting the individual whereas the UK system is concerned (supposedly) with finding the truth.

          This is why the US has strong legal privilege protections whereas the UK has barely any. Also why in the US tainted evidence can result in a case being thrown out whereas in the UK tainted evidence is still admissible.

          1. cynic56

            "whereas the UK system is concerned (supposedly) with finding the truth."

            Glad you added "supposedly". Although it probably needed 24 point, bold, capitals, underlined with flashing lights and a brass band accompaniment. Truth and justice rarely encounter our legal system these days.

  5. Chozo

    Puzzled

    So why can't we have a second password for "Opened Under Duress" situations as is common with many building access control systems?

    1. DougS Silver badge

      Re: Puzzled

      If the government is held to have the right to force you to divulge a password (which IMHO totally destroys the intent of the 5th amendment) then they'd make a felony for putting in a duress password to erase the phone so it wouldn't be a way around it.

  6. SharpOB

    My passcode is a number, but I do it based on a pattern of going down the side until halfway, and then moving along one and then going down the side.

    I can't recall the numbers, just the order that you press them based on the location. If I was asked to provide the numbers, I would be unable to do so.

    1. Carpet Deal 'em
      Boffin

      > If I was asked to provide the numbers, I would be unable to do so.

      Which isn't what they're asking for. The claim is that, since they know you know how to unlock the device, they have the right to force you to do so without that pesky fifth amendment getting in the way. You could be forgiven for misunderstanding that bit, though: this is some of the finest hairsplitting in human history.

      1. Charles 9 Silver badge

        Put it this way: prior rulings say you CAN be compelled to open a safe.

    2. DropBear Silver badge

      The OP has a point though, I have the same problem. I can unlock my phone with the pattern-out-of-digits I use but I have not the foggiest idea what the actual numbers I'm always pressing are supposed to be. If you'd walk up to me with a gun and demand "the number, now, or I'll shoot" I'd be dead, full stop. Yes, I do get it that in a practical context they'd most likely be perfectly fine with me just performing the unlocking - but if given just a piece of paper without the phone and told "write it down, or else" I would be genuinely unable to...

  7. Waseem Alkurdi Silver badge

    It's the cat pics. They're the cause of all evil ^_^

    On a more serious note, it might be about text messages or WhatsApp conversations, maybe something to the effect that he's been drinking?

  8. Anonymous Coward
    Anonymous Coward

    The password is courage ...

    1. MachDiamond Silver badge

      "The password is courage ..."

      Nope, it's "Swordfish".

    2. DropBear Silver badge
      Trollface

      The passcode of that phone is "none of your business"...

  9. Anonymous Coward
    Anonymous Coward

    That's if he knows what the "id" needed is.

    My Android phone (Wileyfox, Cyanogen or whatever it became) has a feature "protected apps" which apparently needs the email address and password of the Google account the phone is signed into.

    Except it doesn't work - just insists it's the "wrong userid or password".

    Only I set this phone up - using one account.

    Gawd help me if I get nabbed and they want that unlocked.

    1. JimmyPage Silver badge
      Boffin

      Re: That's if he knows what the "id" needed is.

      Whenever you experience problems with accounts that "won't work" it's worth checking to see if you've got some form of 2FA enabled. I certainly know Google have some shitty code which 2FA "breaks" by refusing to acknowledge a valid login if 2FA is enable on an account.

      Turn it off, try logging in again, do what you have to do, then re-enable.

      Not many people know this. Or if they do, they're keeping it secret.

  10. Reginald Onway
    Big Brother

    Bill of NO Rights

    The former Bill of Rights has been mostly negated in the last two hundred years. Government has grown in power leaving much less for us.

    I would say the spirit of the Fifth Amendment protects revelation of passwords, but the onslaught of caustic court decisions and new laws go against protection of individual rights.

    Police aren't going to stop the assault on individual rights until the US goes full UK and makes it flat illegal to conceal a password from the police.

    Only then we will be secure from unwarranted intrusions altogether, because the right against self-incrimination, and all the rest, will be gone.

    They will because they can and there is nothing and no one to stop them.

  11. Anonymous Coward
    Anonymous Coward

    Point phone at face - job done.

    The magic that is Face Unlock... The least secure way to lock your phone... But something Apple make a huge big deal about.

    1. John Brown (no body) Silver badge
      Thumb Up

      Re: Point phone at face - job done.

      "The magic that is Face Unlock... The least secure way to lock your phone... But something Apple make a huge big deal about."

      Exactly! Biometrics are a username, not a password. If you can't change it, it's not a password!

      1. Danny 2 Silver badge

        Re: Point phone at face - job done.

        "If you can't change it, it's not a password!"

        I can't keep my face the same. If I had locked a device using my face as a teenager, then my current face would not unlock it.

        1. Colabroad

          Re: Point phone at face - job done.

          Some of our Computer User Non-Technicals wanted to use webcams to unlock their PCs with face recognition.

          We agreed with the proviso that the company would not pay the cost of plastic surgery to change their "password" every month.

  12. Bibbit

    What nice police

    It is cheering to see their concern that his device's OS is up to date. You would never get that caring attitude in the UK. Did they offer to repair the cracked screen too?

  13. herberts ghost

    What if your pass-code is a confession in itself or leads to evidence against you.

    Examples: IAmGuiltyOfDrivingWhileTesting

    Used to be this would have been good in the US.

    "I shipped PGP to France" - It was ileagal to ship encryption SW overseas and against the Law in France to import" The US Judge cannot grant immunity for an offshore crime.

  14. bigtimehustler

    I agree passwords are the most secure, but most face recognition, modern ones anyway, analyse your iris too and so require your eyes to be open. I really doubt they are going to pin your eyelids back while they scan your face so in reality thst particularly biometric is probably mostky safe too, unless you've done some diabolical crime.

    1. Claptrap314 Bronze badge

      I sang in the rain.

  15. MachDiamond Silver badge

    Burn

    A great way to burn The Man® is to use a face recognition program programmed so you have to push a button and if you have a particular eye closed when it looks at you, it securely deletes certain folders in the background. Or maybe it's just raised eyebrows, whatever.

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