Military Appeals Court Says Demands To Unlock Phones May Violate The Fifth Amendment

from the ANSWER-UNCLEAR:-ASK-AGAIN-LATER dept

A decision [PDF] handed down by the Appeals Court presiding over military cases that almost affirms Fifth Amendment protections against being forced unlock devices and/or hand over passwords. Almost. The CAAF (Court of Appeals for the Armed Forces) doesn't quite connect the final dot, but does at least discuss the issue, rather than dismiss the Fifth Amendment question out of hand. (h/t FourthAmendment.com]

The case stems from a harassment case against a soldier who violated (apparently repeatedly) a no-contact order separating him from his wife. After being taken into custody, Sgt. Edward Mitchell demanded to speak to a lawyer. Rather than provide him with a lawyer, investigators asked him to unlock his phone instead.

Appellee invoked his right to counsel at approximately 10:50 a.m. Appellee's platoon leader signed a "Receipt for Pre-Trial/Post Trial Prisoner or Detained Person," and SSG Knight escorted Appellee back to his unit, where he remained in the company area and accessed both his Kyocera phone and iPhone.

[...]

In the office, Investigator Tsai informed Appellee of the verbal search and seizure authorization, and Appellee questioned the validity of verbal authorizations, asking to see a written one. Around this time, the commander left the office. Investigator Tsai told Appellee that verbal authorizations are valid and asked if Appellee had any cell phones on his person. Appellee then handed an iPhone to the investigators. Investigator Tsai saw that the iPhone was protected by a numeric passcode, and asked Appellee to provide it. Appellee refused.

At this point, this line of questioning should have been abandoned. Actually, it should never have begun without Mitchell's lawyer present. But the investigators apparently believed that asking, rather than ordering, Mitchell to unlock his phone made the whole thing consensual.

Investigator Tsai then handed the phone back to Appellee and asked him to unlock it, saying: "if you could unlock it, great, if you could help us out. But if you don't, we'll wait for a digital forensic expert to unlock it." Neither investigator knew at the time that Appellee's iPhone had two finger/thumb prints stored, and could have potentially been opened using "Touch ID capabilities." Appellee then entered his passcode and unlocked the phone: "[Appellee] was also required to permanently disable the cell phone's passcode protection. In order to do so, [he] was required to access the phone's settings and enter his numeric passcode (PIN) two more times to fully disable the phone's protections."

The military judge at the lower level suppressed the evidence, holding that Mitchell was in custody without requested legal representation at the time he unlocked his phone for investigators. The Appeals Court affirms the lower court's findings.

Under the circumstances presented, we conclude that the Government violated Appellee's Fifth Amendment right to counsel as protected by Miranda and Edwards. The Government does not contest that Appellee was in custody when he invoked his right to counsel while detained at the military police station. It is almost equally clear that Appellee was in custody in his commander's office when investigators asked him to unlock his iPhone.

The court also points out that simply asking nicely for an in-custody suspect to "help out" the government by possibly incriminating themselves doesn't make it any more Fifth Amendment-compliant, nor does it change the nature of questioning from an "interrogation" to "a couple of guys chatting about stuff with absolutely no criminal case-building implications."

This line of questioning qualifies as interrogation. The agents' initial request—“can you give us your PIN?”—is an express question, reasonably likely to elicit an incriminating response. The Government contends that a request for consent to search is not an interrogation, citing this Court’s reasoning in United States v. Frazier that “such requests are not interrogations and the consent given is ordinarily not a statement.” 34 M.J. 135, 137 (C.M.A. 1992). But asking Appellee to state his passcode involves more than a mere consent to search; it asks Appellee to provide the Government with the passcode itself, which is incriminating information in the Fifth Amendment sense, and thus privileged.

The court points out the simple act of unlocking a phone can be incriminating. It demonstrates for investigators and prosecutors the person holding the phone may well be responsible for any incriminating content found on it. It also implies ownership, making it easier to connect the person to the device (and the content contained).

By asking Appellee to enter his passcode, the Government was seeking an “answer[] … which would furnish a link in the chain of evidence needed to prosecute” in the same way that Hoffman and Hubbell used the phrase. Not only did the response give the Government access to direct evidence as in Hubbell, it also constituted direct evidence as in Hoffman. See Hubbell, 530 U.S. at 39–40 (“The documents were produced before a grand jury …. The use of those sources of information eventually led to the return of an indictment ….”); Hoffman, 341 U.S. at 488 (“[T]ruthful answers … to these questions might have disclosed that he was engaged in such proscribed activity.”). As even the dissent concedes, Appellee’s response constitutes an implicit statement “that [he] owned the phone and knew the passcode for it.”

Based on that, the court finds Mitchell's Fifth Amendment rights were violated by this in-custody request to provide a passcode. Unfortunately, the court considers this the end of its judicial inquiry.

In light of this holding, we need not reach the question of whether the Government directly violated Appellee’s Fifth Amendment privilege against compelled self-incrimination. We thus do not address whether Appellee’s delivery of his passcode was “testimonial” or “compelled,” as each represents a distinct inquiry.

Even though the ruling doesn't extend far enough to make passcodes worthy of Fifth Amendment protections, the judicial analysis at least shows providing passwords can create evidence to be used against the accused. This decision doesn't quite stretch that far thanks to the investigators' ignoring Mitchell's invocation of his right to an attorney, but it does the act of entering passwords can be considered self-incriminating.


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  1. identicon
    Anonymous Coward, 6 Sep 2017 @ 12:13pm

    So it comes down to having to prove someone owns a phone after they pull a phone out of their pocket (or their butt, whatever)?

    No sir, this isn't my phone that was in my pocket.

    That is pretty weak, but that is the law, which sucks, as does most lawyers. No fucking wonder our system is so screwed up. You can't require someone to unlock a phone not because of privacy but because it proves you own the phone?

    reply to this | link to this | view in thread ]

  2. icon
    Anonymous Anonymous Coward (profile), 6 Sep 2017 @ 12:17pm

    Half Assed...again

    It appears that many of our courts have two basic dispositions. The first is to allow law enforcement to do about anything without need to know the laws they enforce or be allowed 'qualified immunity' for violations or 'good faith' exceptions that accomplish basically the same thing. The other is to find that law enforcement did in fact violate the law or Constitutional protections, but then don't actually make a ruling that makes the point...pointedly.

    For a large part, a quivering mass of non-commitment.

    reply to this | link to this | view in thread ]

  3. identicon
    SirWired, 6 Sep 2017 @ 12:23pm

    This decision is not an unreasonable compromise; the key is different from the data

    The 5th amendment, read literally, says you cannot be compelled to be a witness against yourself. This means that you cannot be compelled to utter a single word that will ever be heard in a courtroom.

    But just because nothing you are forced to say can be used against you does not mean you cannot be compelled to provide non-testimonial evidence that others will then utilize to testify against you. For instance, you can be forced to participate in a lineup, provide blood, hair, urine, DNA, voice etc. samples, have your fingerprints taken, etc.

    In this sort of case, I could see as inadmissible the facts that data was encrypted, the fact that the accused had possession of the key, and the key itself; the prosecution will have to use other means to demonstrate the data belongs to you. But the data behind the key? I don't see that it's an inherently unreasonable position to state that the data is no more privileged than the contents of a file cabinet seized under warrant.

    reply to this | link to this | view in thread ]

  4. icon
    Anonymous Anonymous Coward (profile), 6 Sep 2017 @ 12:40pm

    Re: This decision is not an unreasonable compromise; the key is different from the data

    I think the specificity requirement is what is at issue with many cellphone searches. Without a specification in the warrant of what exactly they are looking for there will be a whole lot of looking around for something, anything, that might be incriminating, in the instant case or otherwise.

    Besides, if it is email or text messages they are looking for, they can always get them from the other end of the communication. Which goes to show how lazy investigators can get. There is no necessity to get into ones phone to get emails or text messages, it is just easier. If they want a contact list, isn't that available from the service provider? The third party doctrine, while despicable in concept, would give them that information.

    reply to this | link to this | view in thread ]

  5. icon
    stderric (profile), 6 Sep 2017 @ 1:29pm

    Re: This decision is not an unreasonable compromise; the key is different from the data

    the data is no more privileged than the contents of a file cabinet seized under warrant.

    I think that's kinda what Riley addressed: an arrest warrant lets 'em search your wallet, purse, or backpack, but a smartphone can contain so much information that it's like searching a house - and therefore requires its own separate warrant.

    reply to this | link to this | view in thread ]

  6. icon
    stderric (profile), 6 Sep 2017 @ 1:45pm

    Re: Half Assed...again

    Sadly enough, I've gotten so pessimistic that having anything come even this close to making a clear, definitive statement made me positively giddy. At least they mentioned that someone might want to do something about the elephant standing in the middle of the room. Y'know. Eventually.

    reply to this | link to this | view in thread ]

  7. identicon
    Will B., 6 Sep 2017 @ 2:00pm

    Re: This decision is not an unreasonable compromise; the key is different from the data

    With all due respect, your first two sentences are *not equivalent.*

    reply to this | link to this | view in thread ]

  8. identicon
    Thad, 6 Sep 2017 @ 2:04pm

    Off-Topic

    Since there's no announcement up yet, I'll put this here:

    Judge dismisses Shiva “I Invented EMAIL” Ayyadurai’s libel lawsuit against Techdirt

    Congratulations. And a job well-done by your legal team.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 6 Sep 2017 @ 2:31pm

    Re:

    Having a phone in your pocket can be used as evidence pointing to the idea that it's your phone, but there might be some doubt left. After all, have you never ever been in even brief possession of a friend's phone? Or a significant other's phone? Or what if they had just bought the phone second hand? But unlocking that phone removes a fair amount of that doubt. As does the contents of the phone which the police might not have been able to access if you had not unlocked it.

    This isn't lawyers being dumb or the law sucking. This is how it should be. This is the kind of thing that can make the difference between "guilty" and "a reasonable doubt".

    What sucks is that many other judges have ruled that you CAN be compelled to unlock a phone.

    reply to this | link to this | view in thread ]

  10. identicon
    SirWired, 6 Sep 2017 @ 2:43pm

    I certainly support a warrant being required

    I certainly support a warrant being required to search a cell phone. No objections whatsoever from me on that front. (That's a (easy to answer) 4th amendment question, not a 5th amendment question.)

    reply to this | link to this | view in thread ]

  11. identicon
    SirWired, 6 Sep 2017 @ 2:48pm

    Specificity is a separate issue

    Determining if a warrant is a broad fishing expedition or sufficiently narrowly targeted is a useful 4th-amendment question to ask, and one no different from a raid on an office or a house.

    But the question at hand is regarding your 5th amendment rights around the accused being compelled to hand over the encryption key; it's an entirely different part of law.

    And it's not always going to be the case that investigators can retrieve messages from the other end; that pre-supposes they know the messages exist and to whom they were sent and/or the service provider has a copy.

    reply to this | link to this | view in thread ]

  12. identicon
    michael, 6 Sep 2017 @ 2:52pm

    Re: This decision is not an unreasonable compromise; the key is different from the data

    "The 1st amendment, read literally, says that Americans have freedom of speech. This means that deaf/mute people enjoy no 1st amendment freedoms."

    Please explain how your idiotic first 2 sentences differ from mine from a legal perspective.

    reply to this | link to this | view in thread ]

  13. icon
    SirWired (profile), 6 Sep 2017 @ 3:11pm

    A dictionary would be a good start

    A dictionary patiently explains that "speech" can refer to more than just actual sounds. (Also, I'm not sure what Deafness has to do with anything...)

    Somebody being forced to testify against themselves (or having things they were forced to say introduced as evidence) is very different from being required to provide indirect assistance to authorities in ways that might not be favorable to you. I gave several examples of the sorts of assistance defendants are required to provide under well-established law.

    reply to this | link to this | view in thread ]

  14. icon
    stderric (profile), 6 Sep 2017 @ 4:52pm

    Re: I certainly support a warrant being required

    Gotcha. I haven't seen anyone address the 'self incrimination by revealing anything known' issue in a long time - the old 'you have to surrender a key to a lockbox, but not the combination to a safe' thing. I used to see comparisons drawn between that example and the difference between passwords and biometrics.

    By chance, does anyone know what happened with that argument?

    reply to this | link to this | view in thread ]

  15. icon
    stderric (profile), 6 Sep 2017 @ 4:53pm

    Re: Re: I certainly support a warrant being required

    Dang it, Submit instead of Preview. Oh well, close enough.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 6 Sep 2017 @ 4:55pm

    Re: Re:

    Wait - wut?

    You can be forced to unlock a phone to prove who owns it but you can not be compelled to unlock a phone ... I think I mised something.

    reply to this | link to this | view in thread ]

  17. identicon
    Agammamon, 6 Sep 2017 @ 5:10pm

    This pretty much accords with my experience in the military - our courts take defendant rights and protections a hell of a lot more seriously than the civilian courts do.

    And that's sad.

    reply to this | link to this | view in thread ]

  18. identicon
    Agammamon, 6 Sep 2017 @ 5:12pm

    Re:

    Beyond

    A

    Reasonable

    Doubt

    Simple possession = guilty is how you get screwed over because someone dropped an ecstasy pill in your back seat.

    reply to this | link to this | view in thread ]

  19. icon
    stderric (profile), 6 Sep 2017 @ 5:32pm

    Re: Re: I certainly support a warrant being required

    Just from the Wikipedia entry for US vs Hubble 'act of production doctrine':

    Under the Act of Production Doctrine, the act of an individual in producing documents or materials (e.g., in response to a subpoena) may have a "testimonial aspect" for purposes of the individual's right to assert the Fifth Amendment privilege against self-incrimination to the extent that the individual's act of production provides information not already in the hands of law enforcement personnel about the (1) existence; (2) custody; or (3) authenticity, of the documents or materials produced.

    https://en.wikipedia.org/wiki/United_States_v._Hubbell#Summary_of_the_Act_of_Production_Do ctrine

    reply to this | link to this | view in thread ]

  20. identicon
    Anonymous Coward, 6 Sep 2017 @ 10:53pm

    Re:

    Sad, perhaps, but not particularly surprising.

    The military in general places a lot more emphasis on proper procedure, especially if there's a possibility that not doing so will have severe repercussions that will bite you in the ass down the line. Soldiers aren't completely expendable either, so there's a reason not to immediately treat all defendants as guilty.

    Civilians, on the other hand, aren't much more than walking wallets with assets that can be seized when it's convenient or opportune.

    reply to this | link to this | view in thread ]

  21. icon
    Ryunosuke (profile), 7 Sep 2017 @ 8:03am

    Can this ruling and opinion be cited in civilian court?

    reply to this | link to this | view in thread ]

  22. identicon
    Thomas Porter, 9 Sep 2017 @ 6:40am

    Where is the document?

    Where is the document?

    reply to this | link to this | view in thread ]


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