TWIG 572: Cafe Ground Zero

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What are your thoughts about today’s show? We’d love to hear from you!

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@ant_pruitt what system do they use for the order of execution in Math now? When I was at school, it was BODMAS (Brackets, Ordinals, Division, Multiplication, Addition and Subtraction). Surely just randomly changing the ordering now will make all the results of previous equations wrong? Won’t they have to re-do all the equations to force the original ordering (additional brackets etc.)?

I often use superfluous brackets in equations in programming, just to make it clearer to the reader, what the formula is supposed to do, so I suppose a lot of my equations would still work. But if the compilers and interpreters are also changed, that means a lot of programs will produce the wrong results and if they aren’t changed, students coming along now won’t get the results they are expecting.

Or did I misunderstand your comment?

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I wanted to comment on the NJ Supreme Court ruling. The reporting in this story (and nearly every story like it) is a little wrong.
I am a lawyer and a digital forensics expert witness. I testify in court for lawyers on issues like these (I also conduct forensic examinations, like the type the police were trying to conduct in this NJ case).

There is absolutely 5th Amendment protection regarding your password or passcode to your mobile phone. Courts are divided about fingerprint/FaceID to unlock a phone, but even when they can use one of those methods, law enforcement typically still needs a password.
The NJ Supreme Court did NOT say the 5th Amendment does not apply here. Instead, they have said what every other court has said in this context - there is an exception to the 5th Amendment that also applies.
In 1976, the United States Supreme Court issued a decision in Fisher v. US that involved the 5th Amendment. In that decision, the court applied the foregone conclusions exception. The prosecution can say 5th Amendment rights are not touched if they can establish knowledge of: 1) the existence of the evidence demanded, 2) the possession or control of that evidence by the defendant, and 3) the authenticity of the evidence. If the prosecution meets those three criteria, then they can use the foregone conlcusion excetion to the 5th Amendment.
That is exactly what happened in this NJ Supreme Court case.

As I am writing a book for lawyers on digital evidence topics, I’ve spent a lot of time researching these issues. Every case I have seen where a defendant was ordered to give up their passwords was because the prosecution met their obligations under the foregone conclusion exception. I have not seen a single case where the court flat out ruled that the 5th Amendment does not apply to passwords/passcodes.

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The question the court needs to settle is whether it is acceptable to have a recording of the entirety of someone’s personal life just because there is a desire for one specific set of information. Sure the phone may well contain one small piece of information that is already known to exist, but giving unfettered access to someone’s phone is like giving them access to every aspect of their life for the entirety of the time that person was in possession said phone. Maybe, for example, he also sent some dick pics… those aren’t the subject of the investigation, but you can be damn sure some sleazy prosecutor will want them for “reasons.”

Allow me to preface my comments by saying I am not a lawyer. Isn’t searching someone’s phone for evidence of a specific crime comparable to searching someone’s house for evidence of a specific crime? I imagine a search warrant opens up a suspect’s entire home to investigation, no?

@Leo @ant_pruitt @gigastacey @JeffJarvis Excellent discussion of the Surface Duo!

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Also not a lawyer, but I think the answer is actually no, I don’t think it does. The search warrant says what is sought, and anything else unrelated is not allowed to be considered, in general.

Possibly related: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/21/the-police-cant-just-share-the-contents-of-a-seized-iphone-with-other-agencies-court-rules/

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Sorry, just to be clear I was wondering if police have access to the entire property in search of specific evidence for a specific crime. I am NOT suggesting that they are free to collect any and all evidence of any crime. In other words, the warrant is for say a residence at 100 Maple Street. Or is it the case that if a witness or tipster said “there was contraband in the bedroom” then the warrant would specify that police could only search the bedroom?

Well one presumes they get suitably generic warrants to allow them to do anything they like because judges are too lazy to question much of anything. And the same thing likely applies to phones.

Any suggestions for a reasonable way to circumscribe access such that police could get information they’re legally pursuing, but no more than that?

Are you talking about physical access/evidence, or inside the phone? I can’t think of any obvious way to allow a phone to be of much use and at the same time have multiple partitions. (Your PC can have multiple user accounts, but it’s not convenient to use more than one at a time. I think phones CAN sort of have multiple users too, but again, it’s a PITA.)

Getting more creative, I wonder what happens if you generally always carry multiple phones (probably only 2, but who am I to limit creativity.) It could then be argued that one of them was someone else’s (your girl/boyfriends, your child’s, your bosses, say you JUST found it and were waiting for the owner to call it… I donno.) Unclear what happens then… would they feel obligated to inspect a phone you claim was someone else’s ?

Thanks for the clarification @BChase - I really appreciate that. In the Indiana case the defendant was jailed for two years according to the foregone conclusion doctrine. But didn’t the Indiana Supreme Court reverse that or am I misunderstanding?

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Lots of topics here, so let me do my best.

First warrants for homes vs. warrants for phones. This is a really interesting area of law. The warrant requirement requires particularity. You have to specify what you are searching for. If you are searching a home for a stolen car, you can’t open a document safe. Clearly there wouldn’t be a car in there.
There is a plain view doctrine, which says if you are searching a home for X and while searching illegal item Y is in plain view, then you can seize it. You were lawfully in the home looking for X, found Y, all is good.

So, how does that apply to a phone? Well, there are mixed results here.
There are courts that say because law enforcement cannot know for certain where the data is located on a phone, then law enforcement can search the whole phone. There are other courts that say, if you have probable cause for a search for text messages between person A and person B that occurred in July, then you can’t go searching for text messages in August, or look at data from other apps on the phone.
I testified in a case on this very issue in Federal Court in Arizona about a year or so ago. The court ruled the warrant was overbroad and law enforcement could not go searching for things they didn’t have probable cause for.

Warrants are a 4th Amendment issue. They are very complicated in the digital realm.
This particularity requirement has also been applied by some courts for online data. For example, if law enforcement has probable cause to believe there were Facebook messages between two individuals that is relevant to a case, they cannot get a warrant to have Facebook produce the entire account. They only get to see what they have probable cause for.

The 5th Amendment issue is different. Here, we are dealing with whether or not the communication by the defendant is testimonial in nature. If it is testimonial (like giving up a password), then the question is if the foregone conclusion exception applies.

So, @Leo, that brings me to the case you talked about with the defendant who refused to unlock his encrypted hard drive. That was a case out of Pennsylvania: https://www.abajournal.com/news/article/3rd-circuit-orders-release-of-ex-cop-who-wouldnt-unlock-hard-drive-cites-cap-on-civil-contempt-detention
So, the issue here was actually how long they could lock up the defendant for refusing to give up his password.
I’m not familiar with the Indiana Supreme Court case, but this Pennsylvania one is the one I believe you and Jeff were talking about on the show.

I hope that helps to clarify some of the questions. This is a very complicated area of law. I actually teach a 1-hour course for lawyers on this very topic, because it is not well known.

If you ever need a guest to talk about it on a show, let me know. :wink: I was on TWiL a couple of years ago, but I don’t think we got into these issues.

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I just remembered that my talk for lawyers on this issue was recorded. If anyone wants to watch, it is here: https://youtu.be/vE7AjRCBI3M

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Sorry for 3 posts in a row, but I just looked into the Indiana case. The EFF’s write up of it is very good: https://www.eff.org/deeplinks/2020/06/victory-indiana-supreme-court-rules-police-cant-force-smartphone-user-unlock-her

I think they do a good job of explaining how narrow the foregone conclusion rule is. Just establishing that she owns the device is not enough. I think the language of Fisher would make that clear, but obviously prosecutors are trying to make it broader.

The court addressed that law enforcement has tools to deal with encrypted devices. I think that is a critical point often overlooked. There are two major players in the decryption market that sell to law enforcement: Cellebrite and Grayshift. Both of these companies have ability to bypass passwords/encryption on many modern phones. So, if law enforcement has this ability (or can obtain this ability), then it really shows how their requests could lead to the erosion of the Fifth Amendment.

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No you understand it correctly. I don’t remember off hand what the order is now, but it used to be Parentheses, exponent, multiply, division, addition, subtraction. So bizarre

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Thank you. :fist_right:t5:

Yes, there is no way that you can just arbitrarily change the order. Every programming language, Excel etc. uses the old order, so new programmers coming along will find their results are wrong.

Edit: also, any historical treatise on mathematics will be incomprehensible to anyone being taught at the moment, because the conclusions will “be wrong” to them.

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Wow, I can’t believe Jeff used the word “Midget” at 1:05.45 or so to describe Leo because he’s now small on Twitter OMG, that’s really bad!!

LPA issues statement to abolish the “m” word

September 2015

Little People of America, the world’s oldest and largest dwarfism support organization and an international, membership-based organization for people with dwarfism and their families, advocates to abolish the use of the word “midget”. The word “midget” was never coined as the official term to identify people with dwarfism, but was created as a label used to refer to people of short stature who were on public display for curiosity and sport. Today, the word “midget” is considered a derogatory slur

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They didn’t market the change very well. That is the fist I’ve heard of it…

So, what do I call the classic sports car that I drove when I was younger?