For more than half a century, “You have the right to remain silent” has been the most famous sentence in American criminal justice. Yet some judges seem never to have heard it correctly.
They seem to believe that the Supreme Court said, in Miranda v. Arizona, “You have the right to remain silent, except for your cellphone access code.”
The most recent example of this selective recall comes from Florida, where prosecutors have attempted to force two people accused of extortion to hand over their phones’ pass codes. Reality TV star Hencha Voigt and her former boyfriend Wesley Victor have been accused of planning to force Julieanna Goddard, known as “YesJulz” on her popular social media accounts, to pay $18,000 in exchange for not releasing stolen sex videos of her online.
The Miami Herald reported that the FBI contacted Miami-Dade prosecutors after Voigt and Victor did not give up their pass codes, despite a judge’s order that they do so. (They claimed that they did not remember the codes, as the phones had been seized nearly a year prior.) The FBI helpfully offered to pay a third-party company to hack the defendants’ devices.
That company was Cellebrite, an Israel-based tech firm that has made a name for itself helping law enforcement break into encrypted electronics. You may remember the name from the FBI’s fight with Apple over the iPhone used by one of the San Bernardino terrorists. Some news outlets initially reported that Cellebrite was the company the FBI used to break the phone’s encryption, leading the Bureau to drop its legal fight with Apple. Later reports debunked that claim, but clearly Cellebrite was, at a minimum, on the FBI’s contact list.
With the FBI footing the bill, Cellebrite successfully broke into Voigt and Victor’s phones. This was a win for prosecutors, but a loss for those of us who believe that the Fifth Amendment’s protection against self-incrimination does not vanish the moment a citizen uses a cellphone.
As Ars Technica observed, this case illustrates the ongoing uncertainty over whether a person can be compelled to give up a password or decrypt a seized device. On a federal level, a few cases have supported the idea that forced decryption violates Fifth Amendment protections, but such cases are both rare and relatively new. The first known case involving the question only dates back to 2007, when a federal judge in Vermont ruled that forcing someone to reveal his or her encryption key is essentially forcing self-incrimination.
Other cases, however, have supported authorities’ stance that a person handing over an encryption code is more or less the same as handing over the keys to a safe deposit box. A Florida state court came to such a conclusion in 2016, in State of Florida v. Stahl. And the Miami Herald reported that a judge in Broward County recently ordered a man to serve 180 days in jail for failing to provide a working pass code for a phone in a case relating to child abuse; the man insisted he’d given the correct code, but the judge did not believe him.
Until a case like Voigt’s makes it to the Supreme Court, it seems likely that prosecutors and law enforcement will continue to see how far they can push in pursuit of the evidence they want. Much like former FBI Director James Comey, they will argue, out of ignorance or expedience, that no honest person would want strong privacy protection on their personal devices. And they will continue to take steps such as hiring firms like Cellebrite or staging man-in-the-middle attacks to work around such encryption.
At least with Voigt and Victor, police obtained a search warrant to enter the devices in question. But that means that in this case, it was a judge who failed to see clearly that demanding someone accused of a crime hand over his or her password is essentially agreeing that self-incrimination is fine, as long as it involves a phone or a laptop.
The essence of the Supreme Court’s Miranda holding is that a person suspected of a crime cannot be forced to say anything at all to the authorities who detain him or her. That includes providing access codes or, for that matter, stating a preference for a breakfast menu.
Tech companies, civil liberties groups and everyday citizens should take note. Until now, controversies over Miranda (which was a 5-4 decision) have centered on whether and when the authorities could make use of evidence obtained when a suspect’s rights have been violated. The cellphone-pass code gambit is a much more serious effort to undercut Miranda itself, by rewriting the key phrase to say “You have the right to remain silent, except when you don’t.”
August 7, 2017 - 5:41 pm
I’m not certain I agree. Although I see the reasoning, I think it is akin to refusing to turn over your house key because there may be incriminating evidence in your house. If you, as a person in custody, refuses to speak with the authorities, as is your right, the authorities can, nonetheless, apply for a search warrant to enter the household to look for evidence of the crime committed. I really don’t see the difference if it your home or your cellphone. The authorities are looking for specific items or data relating to a specific crime. Wholly permissible with a search and seizure warrant, and perfectly constitutional.
Editor’s Note: Craig Elkin is a retired police sergeant who served with the police department of Middletown, Connecticut. He is the brother of the author of this post.