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Tag: Fifth Amendment

  • Your Passcode Is Protected by Fifth Amendment, Says Court

    Can the police compel you to give up your iPhone passcode?

    Not according to one federal court’s ruling. Doing so would be a violation of your Fifth Amendment rights.

    The case in question involved two insider trading suspects and the Securities and Exchange Commission’s desire to get at evidence it believed was present on the defendants’ work-issued iPhones.

    Unfortunately for the SEC, the phones were protected with passcodes.

    “The SEC argues Defendants, as former Bank data analysts, are corporate custodians in possession of corporate records, and as such cannot assert their Fifth Amendment privilege in refusing to disclose their passcodes. Defendants disagree they are corporate custodians and argue providing the passcodes to their phones is ‘testimonial’ in nature and violates the Fifth Amendment,” says the ruling.

    So, who’s right?

    According to the court, it’s the defendants.

    “Since the passcodes to Defendants’ work-issued smartphones are not corporate records, the act of producing their personal passcodes is testimonial in nature and Defendants properly invoke their fifth Amendment privilege.”

    Your passcode is testimonial, and thus forcing you to reveal it would violate your right against self-incrimination.

    But according to one constitutional scholar, it wouldn’t be wise to think that there’s no feasible way for the government to get around said Fifth Amendment protections.

    “Having the defendant enter in his passcode would minimize the Fifth Amendment implications of the compelled compliance, as it would not involve disclosing the potentially incriminating evidence of the passcode itself. The passcode itself could be independently incriminating, at least in some cases. Imagine a conspiracy case in which members of the conspiracy use a common passcode. Proof that a suspect used that exact passcode on his own phone would be incriminating evidence, as it could help to show membership in the conspiracy,” writes Orin Kerr for the Washington Post.

    “Because the passcode itself could be incriminating, the smart way to limit the Fifth Amendment problem is for the government to ask for an order compelling the target to enter in the passcode rather than to divulge it to the police.”

    And we’re just talking about passcodes. If you use Apple’s Touch ID or any other sort of biometrics to lock your devices, you may be shit out of luck.

  • Lois Lerner, IRS Agent Targeting Tea Party, Retires

    Lois Lerner, the woman who has been the center of attention concerning an IRS scandal involving improperly targeting Tea Party and other conservative groups, has decided to retire.

    At an American Bar Association conference on May 10th, Lerner hinted at the illegal actions in response to a planted audience question. In her response, Lerner stated that targeting by the IRS was “absolutely incorrect,” “insensitive,” and “inappropriate,” and that “the IRS would like to apologize for that.”

    Since that date, Congress has been investigating into the allegations of the IRS targeting conservative groups. Lerner was the head of the branch of the IRS dealing with tax-exemption claims. In 2010, her branch of the IRS began targeting groups with keywords in their names, such as “tea party” and “patriot”. Once noted, these groups would face extra scrutiny when applying for tax-exempt status. This extra investigation would drastically delay these applications, hindering the work of such groups.

    Less than 2 weeks after admitting to the targeting at an ABA conference, Lerner refused to answer any questions at a Congressional hearing, citing the Fifth Amendment, which protects against self-incrimination. However, Lerner cited the right incorrectly. (Which comes as a surprise considering she is a trained lawyer, something which came to light when she admitted that she was an IRS agent who was “not good at math.”) Before invoking the Fifth Amendment at the hearing, Lerner stated “I have not done anything wrong,” she said at the May 22 hearing. “I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other committee.” By professing her innocence before pleading the Fifth, Lerner effectively waived all rights to be protected by the Fifth Amendment. Since that moment, committee Republicans have led a campaign to recall Lerner to Washington to answer their questions, and a piece of legislation was introduced to prevent government officials from pleading the Fifth in Congressional hearings – appropriately named the Lerner Rule. (It didn’t pass.)

    Republicans are not about to let Lerner’s retirement put the issue of targeting off the table, however. Despite statements from an IRS investigation committee in which they found Lerner innocent of targeting due to her own political personal bias, Republicans still want Lerner to answer for her actions:

    “Lois Lerner’s exit from the IRS does not alter the Oversight Committee’s interest in understanding why applicants for tax exempt status were targeted and inappropriately treated because of their political beliefs. We still don’t know why Lois Lerner, as a senior IRS official, had such a personal interest in directing scrutiny and why she denied improper conduct to Congress,” stated House Oversight Committee Chairman Darrell Issa.

    In the meantime, the IRS has been doing much work to repair any damage done and to save their inherently-tarnished reputation. Danny Werfel was appointed as acting commissioner of the IRS by Barack Obama, and the organization has attempted to restructure its management and organization to create a more effective and efficient agency. Fixing its reputation will be critical for the IRS considering they will be the organization responsible for reviewing health-care coverage when the Affordable Care Act goes full-force next year.

    Image via YouTube

  • Colorado Judge Denies Fifth Amendment Applies to Encryption Passphrases

    “I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer,”

    Judge Robert Blackburn of Colorado made this statement regarding Ramona Fricosu, who is accused of being involved in a mortgage scam. He has ordered her to enter her password to unlock protected personal computer files by February 21st or face contempt of court.

    Colorado Springs-based attorney, Philip Dubois, argues on Fricosu’s behalf and offers this example, “If agents execute a search warrant and find, say, a diary handwritten in code, could the target be compelled to decode, i.e., decrypt, the diary?”

    The Fifth Amendment reads in the matter of criminal defense, “nobody can be compelled in any criminal case to be a witness against himself”

    This is not the first time the courts have tackled this issue. Two years ago a Vermont
    U.S. District Judge William Sessions ordered Sebastien Boucher to unlock his Alienware laptop by turning over his passwords. He was accused of possessing child pornography on his laptop computer by US border patrol officers.

    Eventually the original subpoena for the passwords was withdrawn however the defendant was required to unlock the computer (without revealing his pass phrases) in front of the grand jury.

    Barry Steinhardt, director of the ACLU’s technology and liberty program commented on the case and asserted that Boucher “should have been able to assert his Fifth Amendment rights. It’s not the same thing as asking him to turn over the Xeroxed copy of a document.”

    Presently the U.S. Supreme court views the act of making a defendant reveal pass codes as a similar act to compelling a defendant to unlock a secure safe containing incriminating evidence.

    Electronic Frontier Foundation Senior staff attorney Marcia Hofmann lends her expertise to the topic commenting, “Decrypting the data on the laptop can be, in and of itself, a testimonial act–revealing control over a computer and the files on it ….ordering the defendant to enter an encryption password puts her in the situation the Fifth Amendment was designed to prevent: having to choose between incriminating herself, lying under oath, or risking contempt of court.”

    This could become a precedent-setting case for the American Justice System although The U.S. supreme court has yet to have had this issue brought before it. More on this story will follow as the case continues to unfold in late February.