[Puffer Fish]

Is this Orwellian and a violation of individual rights? Or is it perfectly normal and reasonable?

The New Jersey State Supreme Court has ruled that courts can force individuals to give up the passwords to their personal electronic devices, if they have reason to believe that person may likely have committed a crime.

Failure to comply would subject the individual to civil contempt, where in New Jersey they can be jailed for 6 months without right to a trial, or up to 18 months and a $10,000 fine if they are convicted of contempt of court (which is itself a crime).

It would be one thing if the police simply grabbed by force someone's computer or phone to see what was on it (after they obtained a search warrant).
But it is another thing entirely to threaten to put someone in prison if they do not tell you what their password is.

The New Jersey Supreme Court claimed this was not a violation of the Fifth Amendment, which says that an individual does not have to tell the court about a crime they committed.

In this specific case, it was an iPhone that belonged to a former police officer.
They had caught another man who had been involved in selling drugs, and in exchange for the prosecutor filing less charges against him, this man was willing to rat out his friend, the former police officer.
Allegedly, the former police officer had alerted his friend, whom he knew was involved in selling drugs, that there had recently been an (unrelated) drug bust and that police were conducting wiretaps. He also informed his friend that the license plate number of a car that his friend believed was following him likely belonged to law enforcement.
In New Jersey, both of these acts constitute crimes, and the former police officer was charged with "official misconduct, hindering, and obstruction".

These alleged crimes were the basis of the search warrant compelling the man (the former police officer) to give up his phone's password to law enforcement, so they could see if he had sent messages to his friend trying to help him avoid being caught.


If you are curious and want more specifics about this case, that information is posted on another thread in this forum:
MAN JAILED FOR REFUSING TO GIVE POLICE PASSWORD TO PERSONAL COMPUTER FILES
viewtopic.php?f=85&t=177389&start=20
(page 2, date 16 Nov 2020 )


Anyway, it's things like this that really bothering me, and I'm hoping to maybe see some of your opinions here telling me there is nothing wrong with this and it is perfectly normal.

Maybe I am just too Libertarian on issues like this? (Or maybe some of you will agree with me?)
It seems like another example of Orwellian / totalitarianism. Government threatening people to give up their passwords, and it's all about access to personal information.

I can maybe understand this legal policy being used for things like murder and kidnapping, but some of these alleged crimes for which search warrants are being obtained didn't even used to be crimes many years ago.

[Puffer Fish]

"In the case of a man who has spent four years in prison for civil contempt, a federal appeals court has ruled that the maximum penalty for that violation is 18 months.

A split three-judge panel of the U.S. Court of Appeals for the Third Circuit ordered the release of Francis Rawls, who is under prosecution for possession of child pornography and was held in contempt for refusing to give investigators his computer password.​"

Third Circuit Holds 18 Months in Jail the Maximum Penalty for Civil Contempt | The Legal Intelligencer (law.com) February 2020
https://www.law.com/thelegalintelligenc ... 1029202400

So apparently he had been held in prison for 4 years by the state of Pennsylvania, without having been convicted of crime, until a federal court intervened and said he should not have been held in prison for more than a year and a half.

[Thunderhawk]

Lets extrapolate to a cybernetic future. Johnny Q. P. Mnemonic uses cybernetics to augment his memory and general mental functions, like most of the future middle class. Do investigators have a legal right to mind read, bypassing rights/laws against self-incrimination?
If the person refuses, do they have a right to extract the components - lobotomize ?

[Unthinking Majority]

I think the police should need a search warrant to search your electronic device. Unlocking your device for the cops is no different than unlocking your front door and letting the cops come into your house and search if they have a warrant. Both are major invasions of privacy by the state.

I'd never let a cop search my device without a warrant.

[blackjack21]

Always use a password. Police can force you to give a fingerprint or retina scan. So don't use biometrics.

I do think forcing someone to give up a password is tantamount forcing someone to testify against themselves. A password is a product of the mind. So it should be subject to a bar for testifying against oneself. If the police want the info, nothing prevents them from a brute force hack.

[Puffer Fish]

I think the police should need a search warrant to search your electronic device. Unlocking your device for the cops is no different than unlocking your front door

That's still a disingenuous analogy.

Imagine for example a door that is so thick and strong that it is realistically impossible for police to break through it.
Now imagine that you are being threatened to unlock it. And they do not have any specific reason to believe there's something illegal behind that door, and they have no idea exactly what it is they are seeking to find.

In a regular search warrant, police have the right to break down and open a door, and you do not have the right to stop them, but you are still not required by law to open the door for them.
So I think that's a crucial point right there. The difference between law enforcement having the right to break open a door, versus you being threatened with punishment if you do not open that door.


So often the language of statements like "Unlocking your device for the cops is no different than unlocking your front door" ignores the issue of WHO is opening that door.
I mean that you are only being threatened with punishment if you interfere with them opening the door, rather than being threatened with punishment for not opening that door yourself.
Some may not be able to see why that matters, but I think it is a hugely important difference.

You are punishing someone for not allowing you access to information before you even have solid evidence they did something wrong.
(The level of evidence required for a search warrant is much lower than it is for a criminal conviction)

[Wolvenbear]

Is this Orwellian and a violation of individual rights? Or is it perfectly normal and reasonable?

The New Jersey State Supreme Court has ruled that courts can force individuals to give up the passwords to their personal electronic devices, if they have reason to believe that person may likely have committed a crime.

Failure to comply would subject the individual to civil contempt, where in New Jersey they can be jailed for 6 months without right to a trial, or up to 18 months and a $10,000 fine if they are convicted of contempt of court (which is itself a crime).

Considering the Supreme Court has said that government needs a warrant to search a phone (Cullingham v California) and that an individual has the right to refuse a search without a warrant, I would say New Jersey's ruling is blatantly unconstitutional.

[Puffer Fish]

Considering the Supreme Court has said that government needs a warrant to search a phone (Cullingham v California) and that an individual has the right to refuse a search without a warrant, I would say New Jersey's ruling is blatantly unconstitutional.

You are still ignoring the issue.
I think many people are having trouble properly understanding what the issue is.

The police DO have a search warrant, the order is coming from a judge.

The issue is NOT about the police being allowed to search or not. It is about an individual suspect being punished for not giving information, or not assisting with the search.


When people like you write phrases like "refuse a search" it conflates those two different things together.

I am saying there might be situations where police should have the right to enter into a building to take things, but the suspect should have the right not to be forced to give information.

Taking things is not the same thing as threatening punishment if an individual will not tell you information.

[Wolvenbear]

And yet, the Supreme Court, even in Cunningham v California, flat out said an individual has no requirement to assist in a search. Thus, the refusal to give a password may not legally be punished. The individual may be forced to give over their phone or computer, but they have no further obligation. Individuals have an absolute right to refuse to give information which a judge has no authority to overrule.

So your point is still wrong.

[Puffer Fish]

Individuals have an absolute right to refuse to give information which a judge has no authority to overrule.

There are some cases where individuals can be forced to testify, or forced to give information, under threat of punishment.
However, I am personally a lot more hesitant about these type of situations, and I think there's an inherent important difference between this and a search.
The burden of evidence for forcing an individual to testify should be much higher, or involve a situation that does not involve violating privacy. (For example, "What did you see during the scene of the murder?")

Right now they have a procedure in the US where a judge can force an individual to provide testimony which reveals that person's own crimes, but there's a special judicial procedure where that person is granted "immunity", so as not to violate the self-incrimination clause in the Fifth Amendment.
I don't agree with this, not in all situations, but that would be another discussion.

Individuals can also be forced to hand over evidence in written papers, when it is deemed useful for another case.
This is usually called a subpoena.

I also see this is problematic, in many situations. However, to argue that because subpoenas exist that should then mean we should not have any problem with individuals being required to hand over any information, that is a slippery slope.
I don't think the two should be equated. I mean they are sort of on the same spectrum, but they are far enough apart that they should not be seen as the same.

At least with a regular subpoena, the authorities are asking for specific information about something. They are defining what the information is about.

[Wolvenbear]

I disagree with much of the law as it is. That said:

Ignoring the impossibility of getting a reluctant witness to testify, even in theory a witness has less rights than an accused. Since the accused has an absolute right to not testify against himself, and since the Supreme Court has explicitly stated that being forced to provide passwords to a computer of phone which will provide the police evidence against you is incrimination...that issue seems settled, and the above state case to the contrary is plainly illegal. (Courts ignore the law all the time, so that's a problem.)

The immunity procedures you speak of prevent the individual from incriminating himself, so the privilege is of no import. If you can not be prosecuted for admitting crimes, the 5th Amendment isn't violated. Subpeonas are to third parties whose rights aren't implicated or are for civil cases. Subpoenas cannot be used to compel an individual to furnish criminal evidence against himself.

I think you're getting confused.

[Heisenberg]

I think this is a pretty transparent violation of the Fifth Amendment, but the US government stopped even pretending to care about that a long time ago. And it's only going to keep getting worse as the NSA, FBI and police keep getting ever larger budgets, so there's almost no point complaining.

[Rancid]

This sounds horrible. Yes, it sounds like a violation of individual rights to me.