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Iphone Privacy Crime Government Security The Courts

Man Sentenced To 180 Days In Jail For Refusing To Give Police His iPhone Passcode (miamiherald.com) 234

schwit1 quotes a report from Miami Herald: A Hollywood man must serve 180 days in jail for refusing to give up his iPhone password to police, a Broward judge ruled Tuesday -- the latest salvo in intensifying legal battles over law-enforcement access to smartphones. Christopher Wheeler, 41, was taken into custody in a Broward Circuit Court, insisting he had already provided the pass code to police investigating him for child abuse, although the number did not work. "I swear, under oath, I've given them the password," a distraught Wheeler, his hands handcuffed behind his back, told Circuit Judge Michael Rothschild, who earlier in May found the man guilty of contempt of court. As Wheeler was jailed Tuesday, the same issue was unfolding in Miami-Dade for a man accused of extorting a social-media celebrity over stolen sex videos. That man, Wesley Victor, and his girlfriend had been ordered by a judge to produce a passcode to phones suspected of containing text messages showing their collusion in an extortion plot. Victor claimed he didn't remember the number. He prevailed. On Tuesday, Miami-Dade Circuit Judge Charles Johnson ruled that there was no way to prove that Victor actually remembered his passcode, more than 10 months after his initial arrest. Johnson declined to hold the man in contempt of court. Wheeler will eventually be allowed to post bond pending an appeal. If he gives up a working pass code, he'll be allowed out of jail, Judge Rothschild told him.
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Man Sentenced To 180 Days In Jail For Refusing To Give Police His iPhone Passcode

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  • Confusing (Score:5, Informative)

    by Anonymous Coward on Thursday June 01, 2017 @05:05PM (#54529695)

    The snippet above doesn't make clear that the article discussed two different cases. In one case, the guy got 180 days. In the other case, the court let the guy off because the police couldn't prove that he remembered the code 10 months later.

    • Re:Confusing (Score:5, Insightful)

      by sabri ( 584428 ) on Thursday June 01, 2017 @05:23PM (#54529813)
      These judges should go back to law school and read about the 5th, and why it exists. It's not just about the right to remain silent. It is about the absolute right of a suspect in a criminal case to refrain from any actions which would help the prosecution to convict. A modern day criminal trial is already very uneven with the prosecutor having massive amounts of resources, where a suspect has very limited resources.

      These "judges" are criminals themselves and should be thrown in jail for violating this man's human rights.

      History will judge these fools the same way as the inquisitors who tortured heretics to extract a confession. This is basically the same. Putting an innocent man (until proven guilty) in jail because he refuses to cooperate with the inquisition. And of course they create a precedent like this with a case involving children, so the public backlash would be limited. Where are alt-right patriots when you need them?
      • by Archfeld ( 6757 )

        The 5th amendment gives you the right to not testify and provide proof of your own guilt through direct testimony. It doesn't give you the right to hide evidence. A more apt metaphor might be refusing to provide access to a safety deposit box, or open a home safe. Both of those can be physically forced with the right tools and a court order. If you are foolish enough to keep copious notes proving your own guilt and the prosecution can prove their existence or acquire them that is not a 5th amendment issue,

        • by larkost ( 79011 )

          A better analogy would be being put in jail for not providing the location of a safety deposit box that contains proof of your guilt. Assuming that the prosecutor has proof that such a thing exists, but not the location, do you think it alright under the 5th amendment for the government to punish you for not providing the location?

          • More to the point, imagine you have a floor safe in your home, it is found during a lawful search, can you refuse to open it?

            And if the authorities do force it open, and that triggers the destruction of the contents, are you guilty of destroying evidence? OR something else?

            • A quick search shows some differences on that and it is kind of up in the air, but the general rule is this. If it is key lock then yes you can be required to provided it, if is a combination only in your mind then you cannot.
              For the second question, no idea.
              • by xvan ( 2935999 )
                That's an stupid digression. I've read the verdict and it makes no sense. If the nature of the key "physical/non physical" matters, then why the nature of the thing being protected doesn't?

                The safety box analogy is terrible for both ways of the argument. An encryption password isn't locking anything, the physical support is accessible with a screw driver. For the model to be valid you'd need and "ideal unbreakable safety box", why would you bother to base doctrine on an empty shell when we have concrete
          • by Imrik ( 148191 )

            If the prosecutor can prove that a safety box exists that contains proof of your guilt, they can prove you are guilty without the contents and thus do not need them.

            • I'd imagine there are cases where you can prove the existence of the box, but not the underlying crime. For instance, suppose they found a key to a safe deposit box (in an unknown location) with a trace amount of cocaine on it. That would be evidence of a safety deposit box that had drugs in it. But, by itself, would only be prosecutable for the trace amount. Which could be a different crime, based on the quantity.

        • OK, Let's deconstruct your statement.

          The 5th amendment gives you the right to not testify and provide proof of your own guilt through direct testimony.

          The Fifth Amendment gives you the right not to be compelled to testify against yourself, or to quote it, for one "to be a witness against himself". Note the wording. You can be compelled to testify, just not as a witness against yourself. What is well established in precedent is this means you cannot be forced to provide testimony that would prove your guilt, but you can be forced to testify about facts not in dispute, like the combination to the safe in your home that p

        • by rtb61 ( 674572 )

          The article was, clear, he claimed to have provided a passcode but that passcode did not work, whose fault, the people who held the device broke it trying to hack it, Apple's code failed for some reason, Apples hardware failed for some reason, or he lied, if you can not prove which is true, by law, reasonable doubt exists. Where under law, is a consumer required to warrant the functioning of a device they bought, to the point of criminal prosecution, when the manufacturer does not and writes some of the cra

        • Then let the police physically force the phone. If the 'Key' exists only in my mind then I can't be compelled to give it up if I feel it might result in incriminating my self. And refusal to give it up cannot be considered incriminating either.

          It most definitely is a 5th Amendment issue. It requires compelling me to reveal something that only exists in my mind. The Key analogy only goes so far, and in this situation it fails.
      • by Hrrrg ( 565259 )

        Gizmodo actually posted a much more informative story than slashdot. The 5th amendment issue is summarized thus:

        http://gizmodo.com/can-we-plea... [gizmodo.com]

        "Legally speaking, phone unlocking is a very challenging question—that’s the problem. On the one hand, American citizens can’t be forced to testify against themselves according to the Fifth Amendment. This is the reasoning many defense attorneys use when prosecutors try to force suspects to unlock their iPhones. On the other hand, police and prose

        • by xvan ( 2935999 )
          You can be easily compelled to provide biometry evidence, otherwise DNA couldn't be used as evidence.
      • over their bad economic conditions. It's never had and never will have anything to do with freedom. Give them good jobs, a family and paid vacations like their parents had and they'll dissipate into the wind.
      • Look, it makes for an easier prosecution if people believe they have rights that they do not, in fact, have.

      • These judges should go back to law school and read about the 5th, and why it exists.

        And you should go to law school in the first place. Giving up a password is not testifying against yourself. The password is not evidence. The password is a means to access evidence that you have no right to hide.

        (There is a tiny minority of cases where giving the password _would_ be testifying yourself; that is in cases where it is not sure that you are the owner of the device and giving the password clearly proves that you are. )

      • A modern day criminal trial is already very uneven with the prosecutor having massive amounts of resources, where a suspect has very limited resources.

        Good.

        History will judge these fools the same way as the inquisitors who tortured heretics to extract a confession.

        There's a reason why torture isn't permitted and it has nothing to with the reason why the 5th is somewhat silly in this regard. Torture leads to admission of guilt for the purposes of avoiding torture. It has nothing to do with the guilt itself. Handing over data on the other hand is little more than evidence. Data doesn't crack under pressure and as long as it isn't used for a fishing expedition not related to the case at hand there's no reason files on your phone are any different to letters in your

      • by mjwx ( 966435 )

        History will judge these fools the same way as the inquisitors who tortured heretics to extract a confession. This is basically the same. Putting an innocent man (until proven guilty) in jail because he refuses to cooperate with the inquisition. And of course they create a precedent like this with a case involving children, so the public backlash would be limited. Where are alt-right patriots when you need them?

        The so-called "Alt-Right" are in favour of this. Fascism and police states are the love child of authoritarianism the far right. If Trump could take them out of the human rights accords they would welcome it. The irony is, most "Alt-Right" dont realise that they need those rights until its too late.

        Now I'd rather not wait for history to judge these fools, first because history works too slowly and secondly because history is written by the victors. If we don't oppose "alt-right" there is a chance they mi

    • by Sark666 ( 756464 )

      I'm actually surprised that 'I don't remember' worked. Say they look at phone records with the company and see a call made earlier on the day of the arrest. So you remembered your password at 10:38 am, 11:14 am, 12:22 pm, and 2:48 pm, but at 4 pm you don't remember?

      • It is in the article. They asked for the code 10 months later.

      • by The Rizz ( 1319 )

        Say they look at phone records with the company and see a call made earlier on the day of the arrest. So you remembered your password at 10:38 am, 11:14 am, 12:22 pm, and 2:48 pm, but at 4 pm you don't remember?

        "Hey Siri, call Bob at the office."

        Do you actually need to unlock your phone for it to function as a phone? I can dial strait from the voice recognition without unlocking on mine.

  • by Anonymous Coward on Thursday June 01, 2017 @05:06PM (#54529705)

    This is two different stories.

    Wesley Victor, as it says, is not in jail. Christopher Wheeler, in a completely separate and unrelated case, is.

    This has been a public service announcement.

  • It can't make up his mind about whether he prevailed or failed. And that's because it fails to explain that 'A Hollywood man' from sentence one is not the same person as 'Wesley Victor' from sentence two.

    Wesley prevailed. Christopher Wheeler failed.

  • by Anonymous Coward on Thursday June 01, 2017 @05:19PM (#54529799)

    ...you people seem to think you have a right to be secure in your persons, houses, papers, and effects, against unreasonable searches and seizures or something!

    • If a judge issues a warrant, then you aren't (alternatively, the search isn't unreasonable). You should try reading all the way to the end some time.
      • What happens when the judge issues a warrant for something I can not provide?

        How do I prove that I do not have the password anymore?

        Do we now have an unattainable burden of proof on the defendant?

        • I was speaking generally, as the post I was replying to did.

          In terms of this specific type of situation, I'm in the middle on it. Demanding a password should never be allowed as a way of establishing access or ownership; if a phone is found at a crime scene, the prosecutor should not be able to demand the password from you and then use the fact that you know the password as evidence that you were at the crime scene. If it's already shown beyond a reasonable doubt that you own a phone, though (such as the
  • by Anubis IV ( 1279820 ) on Thursday June 01, 2017 @05:23PM (#54529811)

    The summary doesn't make it clear that these are two separate cases, both in Florida.

    Christopher Wheeler is in Broward County and was sentenced to 180 days in jail for refusing to give police his password. He claims he already gave it to them, but the one he gave them doesn't work, hence the contempt of court ruling. Meanwhile, in an entirely separate case, Wesley Victor in neighboring Miami-Dade County claimed he didn't remember the password when he was ordered to provide it 10 months after his arrest, and the judge did not hold him in contempt.

    From what I understand (as an Internet armchair lawyer, i.e. IANAL), both of these actually make sense. Wheeler, from the sounds of things, had indicated through his previous actions and testimony that it was his phone and that he knew the password, so supplying the password would not be considered testimonial in nature at that point, which is why passwords typically can't be compelled from people. As such, it makes sense to hold him in contempt of court if he refuses to hand over a password that they've already established he has. As for Victor, it had been 10 months since they had confiscated his phone, and he never claimed to remember the password at that point, so it makes sense (at least to me) that they wouldn't hold him in contempt of court.

    What might be more interesting is Victor's girlfriend, who's in the same situation he is, but who provided the wrong password for her phone. If she's NOT held in contempt of court after doing so, it would be interesting to hear what the court's rationale is.

    • Can a suspect be compelled to open up a locker/safe etc ? That sounds like the best real-world analog to the passcode on a phone or computer password.

      On an aside, police like this kind of thing since that phone probably has a TON of unrelated fucking nibbles of data they could sift through to either

      a) bring up new charges
      b) use in other cases (such as if a drug suspect gets nabbed)
      c) things that aren't strictly illegal, but otherwise embarrassing that could be used as leverage against the suspect.

      Because on

      • Can a suspect be compelled to open up a locker/safe etc ? That sounds like the best real-world analog to the passcode on a phone or computer password.

        My understanding is that a suspect cannot be forced to provide a combination to a safe. In such circumstances the police or prosecution is free to drill the lock or hire a professional lock smith to open it provided they can get a warrant, just like they would be allowed go and hire their own cryptologist and super computer to try and crack some crypto. The big beef is that unlike high end safes that are resistant to drilling and cracking, strong crypto is ubiquitous unlike really good safes.

        Also I think a

    • by Sycraft-fu ( 314770 ) on Thursday June 01, 2017 @06:05PM (#54530143)

      Ya it isn't completely clear since the article and summary are mixing cases but I can see a contempt ruling if you agreed you had a password, supposedly provided it, it didn't work, and then you tried to play dumb. While you aren't required to testify against yourself, that doesn't mean you can actively work to try and screw the court over.

      So what to do if you are in a situation where the police demand you hand over a password? Keep your mouth shut. Same advice as defense attorneys will give for all things involving law enforcement. Tell them you want a lawyer and you aren't answering any questions. Your lawyer can then advise you on how to proceed. That is the whole thrust of the Miranda warning: You can keep your mouth shut and not answer any questions and wait to talk to a lawyer. You have that right, and they have to let you know you do. So use it.

      But for sure don't do something stupid like say "Sure here's the code," and give them a fake code. There is no way that can help you, and multiple ways it can hurt you.

  • by Anonymous Coward on Thursday June 01, 2017 @06:14PM (#54530199)

    They demand your password, and you hand it over, not wanting to go to jail for half a year. They open your phone, change the password to something random, and lock it. See you in prison.

    • Well, if you can't even trust the legal system...
    • by Tomahawk ( 1343 )

      So you demand that they keep the screen of your phone in your sight at all times. It's like bring a diamond ring into a jeweller to get the stones re-set - you don't let the diamonds out of your sight. Same for you phone.

      There should really be laws (or at least guidelines) in place to ensure that 2 or more officers are present when someone's phone is taken from them. I'm guessing there aren't, though...!?

  • But when under stressful situations I have difficulty remembering numbers. Ask my my social security number, I won't remember that either.
    This is getting way too intense, and I am feel very stressed. can I please go now? No? That seems cruel, and unusual.

  • by gweihir ( 88907 ) on Thursday June 01, 2017 @06:18PM (#54530229)

    1. Ask for passcode
    2. Unlock phone, find no incriminating evidence, change passcode and lock phone again
    3. Claim wrong code was provided

    Voila, guilty until proven innocent. Which the accused cannot do.

    • 2. Unlock phone, find no incriminating evidence, change passcode and lock phone again

      Why not going further: Unlock, then inject into the phone some incriminating evidence. Guys, at some point we need to trust ad minima the legal authorities.

    • "I will gladly give you my password, but only in the presence of my lawyer, and only if the phone is also present and immediately unlocked in front of both my lawyer and myself. All data collection must then be performed right then and there, in front of both my lawyer and myself. Before the phone leaves my sight, I get to change the password and relock it. Only myself and my lawyer will know this new password. My lawyer will know it because, since I cannot take my usual time coming up with a new passwo
  • He wasn't jailed for refusing to give police his passcode, he was jailed for refusing a court order from a judge. That is vastly different than a police officer on the street demanding access to your phone, which the headline makes it sound like.
    • by Hrrrg ( 565259 )

      No he was jailed because he can't remember the password. He can't tell the judge something he doesn't know.

    • by JustNiz ( 692889 )

      But it amounts to the same invasion of privacy, which is the same thing no matter who it comes from.

      • In the US we hold them to be very different things. For instance, a judge is required to approve entry to a home to look for evidence. The officer is charged with solving a crime, the prosecutor with prosecuting it, and the judge with enforcing limits on them (and the defense).

        • by JustNiz ( 692889 )

          Well that's clearly not how its working here. The judge isn;t enforcing limits on the cops, he's using the system to apply duress to the defendant, which by everything I've read is illegal under US law.

          The fact is that in the US, the judges clearly believe themselves to be above the law because they sometimes act without regard to the law, and even in direct contradiction to it. The real problem is that no one holds them accountable.

  • by nine-times ( 778537 ) <nine.times@gmail.com> on Thursday June 01, 2017 @06:26PM (#54530291) Homepage

    "I swear, under oath, I've given them the password," a distraught Wheeler, his hands handcuffed behind his back, told Circuit Judge Michael Rothschild

    He had explained that his password was "fourwordsalluppercase"; one word, all lowercase.

  • ...is likely one of these:

    #include

    int main(int argc, char *argv[]) {
        for (int i=0; i10000; i++) {
            printf ("%04d\n", i);
        }
    }

    Can I go free now?

  • My password is "I don't remember".

  • So if a judge refuses to take your I forgot the PIN defence and jails you for contempt, excluding a 5th amendment defence what are you to do.

    Well this guy now has 180 days to start from 00000 & work to 99999, handing the completed list to the cops with the honest statement, the code is one of the items on this list, now let me out.

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