82. Identification vs. Self-Incrimination Posted on February 9, 2016 by Nathan It just occurred to me that if I merge the old guy and the young guy together, they’d have a full head of hair. Post navigation If you're on desktop, you can navigate with your left and right arrows. Join the conversation! There are now 41 comments on this chapter's page 82. Identification vs. Self-Incrimination. What are your thoughts? Yay!! A new page!! (Not a very profound comic, I know, but this is the first panel I’ve seen go up since I started reading this webcomic, and as the other panels don’t say what day they were put up, I didn’t know how long it would be until the next panel was up. I still don’t know how long it is between panels, though; I need to wait for the next panel to know that. So, for the record, today is February 9th, 2016, and since this is the first comment, this panel must have been put up pretty recently. And actually, now that I think about it, I probably checked this site just yesterday, so yeah, this panel probably went up today.) Reply ↓ He is a working attorney, so you have to give him some slack. Sometimes he’ll post 4 — 5 pages in a week and then it might be 4 — 5 weeks before he posts another. It is worth the wait, though. Reply ↓ Yeah, I got the impression it might be a month or so between panels… I guess we’ll just have to wait and see when the next one goes up Reply ↓ Yeah, there’s no rhyme or reason to it. I love doing it, but it has to get in line behind work, kids, all their increasingly time-consuming school projects and afterschool activities, the wife, and the dog. It does take precedence over TV, Netflix, and video games, however! The last 8 pages went up on 12/2, 12/2, 12/4, 12/11, 12/27, 1/20, 2/1, and 2/9, and if there’s a discernible pattern there I don’t see it. Reply ↓ You mean being a lawyer with a family makes one busy? I am shocked. Note to defendant: Your lawyer probably knows more about law and procedure than the “really smart” guys you meet in jail. Reply ↓ “You’re my lawyer, so that deal the DA is offering, should I take it? I mean, it’s…are you even listening? What’s that you’re drawing?” “Shhh! I’m busy! I’m trying to get the prosecutor’s shoes just right.” Reply ↓ I just realized that I wrote “not a very profound comic” when I MEANT to write “not a very profound comment” (referring to me being excited about the new panel)… *facepalm* Sorry about that. Note to self: Always proofread comments. Reply ↓ Well, it’s not as if it was a terribly profound comic, either. Reply ↓ I think of it as when your professor is talking about, say, fluid dynamics and says, “Now remember that energy has to be conserved here and therefore…” Good to spend a couple minutes reminding us. Reply ↓ Or totally bald Reply ↓ I’ve been logging when I find them since late April of 2014. This helps me select out the ones that do have a consistent pattern and only check them on the days they normally update. My list is,… larger, and there’ll be some mistakes due to occasionally being away from my computer for long weekends, but here it is. F5/2/2014, M5/5, Tu5/6, W5/7, F5/9 (late), F5/16, Su5/18, F5/23, W5/28, F6/6, Su6/8, Sa6/14, M6/16, Tu6/17, F6/20, S6/21(2 comics), F6/27, M6/30, W7/2, Th7/3 (2 comics), Tu7/15, M7/21, Tu7/22, Th7/24(3 comics), F7/25, M7/28, W7/30, Th7/31, F8/1, M8/4, W8/6, Tu8/12, Su8/17, Su8/24, Th8/28, F8/29, M9/1, Tu9/9, M10/13, Tu10/14, W10/15, M10/20, W10/22, Th10/23, F10/24, M10/27, Tu10/28, Su11/2, Th11/6, F11/7, Tu11/11, M11/17, Th11/20, F11/21, Tu11/25, W12/3, M12/8, F12/12, Su1/4/2015, W1/14, W1/28, Th2/12, W3/4, Tu3/17, W3/26, F4/3, Su4/12, Th4/23(2), Sa4/25, M5/4(3), Th5/14, Tu6/2, (long court case here), W7/8, Sa7/11, W7/15, F7/17, W7/22, W7/29, F7/31, Tu8/4, W8/5, Th8/6, W8/19, F8/28, F9/25 (2), Su10/4, W10/14, M10/26 (3), W10/28 (2, 2nd one late), M11/2 (late enough to be Tu), Tu11/3 ( found late enough to be W), Th11/5, Sa11/7 (2), W11/11(3), Sa11/14, Fr11/20(2), Sa11/21(2), Su11/22(3), W12/2(2), Su12/27-M12/28, W1/20, M2/1, Tu2/9(late), P.S. How’d the court case back in June go? Reply ↓ I keep forgetting to unblock the scripts before I post. Sorry. This post, that I’m replying to, was supposed to be in reply to our gracious host. Reply ↓ It helps me select out the WEBCOMICS that DO update on a perceptible pattern, so I can separate them out for checking only on the days of the week I can expect them to have updated. Reply ↓ I am curious about where the distinction between testimonial and non-testimonial evidence and the differing bodies of constitutional law and criminal procedure came from. Did the distinction just become part of the law because it seems self-evident or does the distinction serve some public policy purpose? Reply ↓ IIRC, it started like this: https://lawcomic.net/guide/?p=2317 Reply ↓ I can think of a practical reason: You can reliably produce physical evidence, but you can’t always produce truthful testimony. If you have a face, you can take a mugshot. If you have blood, it can be sampled. Doesn’t matter who the suspect is or whether they’re innocent or guilty, the physical facts are there. But if a cop demands to know “Where are the bodies buried?” and I’m not the murderer, I can’t answer no matter how much I want to. Why jail me for failing to answer an impossible question? Reply ↓ Please visit the link Anon726 dropped and read through. The answer, or at least the answer as told by Mr. Burney, was posted some time back in the comic itself as part of the differences between our Adversarial system, and much of Europe’s Inquisitorial system. You’ll even find those same images again. Reply ↓ If they’re ‘really smart guys’, why are they in jail? And why don’t people think to ask those kind of questions? Reply ↓ It’s worth asking, but the “guard house lawyer” learned the law, in a very expensive way, but still learned and on average knows it way better than the man on the street. He may be still an amateur compared to the professional lawyer, but inmates do win some cases, sometimes cases no lawyer would touch. Your lawyer won’t like you getting this amateur advice, but he likely won’t be pleased if you consult another lawyer either. So you listen to the guy on the next cot. Just don’t feel he is anything like the final word. Reply ↓ Current events give us another angle on the self-incrimination question: compelling third parties to assist the court in obtaining evidence, as with Apple producing an iPhone image to bypass lock screen passwords. Reply ↓ Um…if they’re getting a third party to get the incriminating information, you’re not incriminating yourself. They may not be able to force you to give up your password, but nothing stops them from trying to break it themselves, or from getting someone else to. It’s more of a general privacy issue than a 5th Amendment one. Reply ↓ I was under the impression that the issue with compelling corporations to help governments access data that would be evidence of a crime is a fourth amendment issue, because the evidence, even if it is a statement by the defendant, already existed before the government asked for it, thus technically making it non-testimonial evidence. Reply ↓ Fourth Amendment instead. I don’t know what existing law has to say about compelling third parties to assist in carrying out search warrants. Can a locksmith refuse a court order to open a door or a safe to assist an investigation of someone else? There’s also a fine distinction in Fifth Amendment law that I’m unsure about related to when document production is considered “testimonial”. Producing incriminating documents is not in general protected, but there’s a subtlety involving your knowing that the incriminating document exists and having a reasonable belief that it can be produced. That’s assuming that revealing your password is considered the same as producing all the documents on the phone — though it is less direct than a “tell us where you hid the body” question. Reply ↓ What really makes this interesting is that the locksmith analogy doesn’t quite fit. The locksmith is presumed to have the tools capable of unlocking the safe; whereas, Apple claims to not have the ability. In other words, they have to “create” a tool to unlock the device. So the court is ordering them to do something that may not be possible. Reply ↓ As I understand it, the phone will erase the data if an incorrect password is entered 10 times in a row. The government wants Apple to remove that so it can try many passwords and eventually get in. Since the phone has to count the incorrect attempts, Apple just needs to stop that counter incrementing. The government also wants Apple to allow electronic attempts at passwords to speed up the process, which would be more difficult. In addition, getting the update onto that phone while making sure it can’t get onto others might be a little tricky. I would not trust the government to download it, because they WILL keep a copy of the altered OS for future use. However, I don’t understand why Apple is not in contempt of court for refusing this order. Can’t the government arrest Tim Cook if they are willing to put up the bad press? Reply ↓ Why does the government need Apple to get the data from the phone for them at all? Why can’t they just subpeona the owner of the phone for whatever data it is that they want in its unencrypted form? That way the burden of proving that the search is unreasonable would be on the owner of the phone if they want to get the subpoena quashed instead of the burden of proof being on the government that they have the legal authority to compel a private corporation to help them gather evidence against a third party. Reply ↓ Because they were shot dead after killing 14 people. It would be nice to know if they talked to any other terrorists that the FBI doesn’t know about yet. Reply ↓ But if the person who we know committed the crime is already dead how is their even a case? Failing that, how is this a 4th, 5th, or 6th amendment rights issue if the only person who we know has a legitimate privacy interest in the phone is already dead? Reply ↓ …and that makes Apple’s position even more indefensible. I don’t know why there aren’t serious consequences for Apple not complying. Reply ↓ I suspect that the legal argument went something like this: Apple: “The government cannot compel us to do this thing because they failed to point to a specific statute that authorizes them to do so.” Government: “No we didn’t. Statute X authorizes us to make this demand under these circumstances.” Apple if it is a state statute: “This statute violates the 14th amendment because it denies us substantive due process.” Apple if it is a federal statute: “This statute violates the 10th amendment by exercising a power reserved to the state governments.” The Supreme Court steadfastly refuses to pick a coherent definition of either “substantive due process” or “reserved powers” and stick with it. So cases like that can easily go all the way to the supreme court if the person arguing them is a big corporation or anyone else with deep pockets and good lawyers. If that’s all it is, why don’t they disassemble the phone, copy the chips into another medium, and run as many emulators as they need to brute force the password? Is the memory encrypted against anything other than the password or anything else that can be separated from the hardware? …Or is it they’re asking for the moon, this time, because enough people might be screaming for blood and they might get their way? The disk encryption/fifth amendment question is in my opinion one of the most profound and interesting unsettled questions in constitutional law. Reply ↓ In Apple’s Motion to Vacate, they made multiple arguments. The strongest arguments are that the All Writs Act of 1789 doesn’t empower the court to order Apple to write backdoor code for the government. The weaker arguments are the constitutional arguments that it would violate free speech (First Amendment) and substantive due process (Fifth Amendment). Cherry-picking from their motion, here’s what Apple argues: 1) The All Writs Act of 1789 is just a stopgap — absent specific authority, a court is allowed to issue an order that enables it to exercise its existing power. It fills in blanks left by Congress. But it doesn’t grant authority specifically withheld by Congress. It grants power to facilitate what Congress has authorized, not power to do things Congress hasn’t authorized. Congress has never authorized third parties to be forced into acting as government agents before, and when the issue has come up they’ve said no. So there’s no existing power to order Apple to create code to hack into its users’ phones, so the All Writs Act doesn’t enable a court to order it. The government’s interpretation of the Act would let it force citizens and companies to do things against their will, if it would help the government do its job. 2) Just because Apple does write software, it doesn’t mean it wouldn’t be incredibly burdensome to make Apple do this for the government. Not only is it a lot of work, but nobody believes the government’s promise to only use it this one time. There are tons more requests just waiting for this one to be granted. It would be burdensome on the general public as well, by creating security holes that hackers could exploit to the great cost and detriment of Apple device users. 3) The government created this problem by screwing with the phones in the first place — they changed the cloud password, and if they’d left that alone and just asked Apple for help at first, the data could have been backed up to the cloud and accessed. 4) The government doesn’t need Apple’s help here. This is what the NSA does for a living, they imply, so have them do it. 5) First Amendment — The government is trying to compel speech. Code counts as speech. The law says that any such compulsion must be narrowly tailored to meet a compelling state interest. Yes, catching terrorists is compelling. But whether this phone has any useful info is pure speculation. A fishing expedition doesn’t qualify. And bad guys tend to use more encryption than what Apple provided, so even if we do unlock it for you you’d still have to do more decryption yourselves. (What Apple failed to argue here is what counts as “narrowly tailored.” Step one is for the government to prove that it’s going to actually advance the government’s interests here. That’s what Apple’s alluding to is saying it’s merely speculative. Step two is to show that it’s not burdening any more speech than is necessary, and Apple left out some decent arguments that requiring it to code a way to undermine its own security has too broad an effect. Step three is for the government to show that there are no less-speech-restrictive ways to do it, and Apple could have used a version of its “let the NSA do it” argument here. The Fourth requirement is kinda sorta what they get to in their next argument, but not quite — that the government’s restricting all the necessary speech and isn’t just singling you out because of what you’re saying. I think a much stronger argument could have been made than the minimal one Apple wrote.) 6) First Amendment — Apple’s position is that back doors should not exist in data security code. The government disagrees. The government’s doing this out of “viewpoint discrimination.” (So weak. Why not instead argue that “they’re trying to force us to change our speech to fit their agenda rather than ours?”) 7) Fifth Amendment (Substantive Due Process, not Self-Incrimination) — Substantive Due Process is what protects rights not already enumerated by the Constitution. Courts must find that there is a liberty at stake, before they can then nullify or minimize government laws/acts that would restrict that liberty. Apple never says what its liberty is that’s being restricted, but reading between the lines it sounds like they mean the liberty to go about their business. Apple argues this liberty is restricted “by conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles.” (Yeah, I get it, but this is practically a throwaway paragraph at the end. It’s kinda obvious they’re hanging their hat on the All Writs arguments, and the constitutional ones are just an afterthought in case they lose there.) Reply ↓ So, in your learned opinion, which way will the 8-member Court rule? Reply ↓ I doubt the Justice Department would take it all the way to the Supremes if they lose this one. And I’m not sure they’d grant cert. if the DOJ tried. Maybe if it was Apple asking, they might be more likely to review. If it got there, the issue would likely turn on the All Writs interpretation — whether it gives a court the power to order third parties to do something they don’t want to do, to help law enforcement carry out a warrant. The issue would be whether the meaning of the Act should be expanded. A justice with conservative jurisprudence would be expected to say no, if Congress wants to grant the courts more authority then let Congress do it, but we’ve never interpreted the Act to grant such power before — yes, it lets courts force a company to do stuff it’s already doing, like pen registers, but to force a company to affirmatively engage in a new endeavor it doesn’t even want to do? Let Congress say so, if that’s what it even wants. Meanwhile, a justice who is politically liberal might well be opposed to giving law enforcement the power to compel private actors to do their work for them, forcibly deputizing anyone against their will, making us even more of a police state. Given that, I’d imagine a fairly strong majority in Apple’s favor. Maybe Alito sides with the DOJ. Probably not Roberts or Thomas. The other five seem like they’d most likely go with Apple — as Scalia almost certainly would have if he were alive. So at least 5-3 if not 7-1 or unanimous. Reply ↓ I had some comments about some of those points that don’t seem credible to me (as a programmer making network devices that have features like secure firmware). Apple is protesting about things that they weren’t actually asked to do. But that made the reply long enough that the “Post Comment” button scrolled out of reach. (Somehow that seems more elegant to me than just having a character limit, even though it’s probably unintentional. :)) So you all are spared. At any rate, the key point I was looking for seems to be covered under (1) “Congress has never authorized third parties to be forced into acting as government agents before, and when the issue has come up they’ve said no.” If there’s no duty for third parties to assist the police in their investigations, then all the details seem moot. Thanks! I’ll see if I can dig up past decisions with respect to the telco pen registers. Any other key cases worth looking for? Reply ↓ There was a decision in a federal court in NY today [link] denying another government application under the All Writs Act to force Apple to bypass its security. Not the same case as the San Bernardino one, but similar. It’s by Magistrate Judge Orenstein, who is one of several who have been “revolting” against law enforcement’s sense of entitlement to electronic evidence. [See WaPo article from 2014] He made a point of stating that, if the government’s position was accepted, there would be “no principled limit” on how far a court could go to force third parties to assist law enforcement. Another powerful statement: “Such argument reflects poorly on a government that exists in part to safeguard the freedom of its citizens – acting as individuals or through the organizations they create – to make autonomous choices about how best to balance societal and private interests in going about their lives and their businesses. The same argument could be used to condemn with equal force any citizen’s chosen form of dissent.” The whole opinion reads like something that would have either enticed or enraged Scalia (as Sarah Jeong tweeted today, “it’s got everything: 4th Amendment, statutory construction, judicial restraint, ‘it’s for the legislature to decide,’ the Founding Fathers…”). I’m starting to rethink my earlier assessment, and consider that SCOTUS might actually want this case, if the DOJ keeps fighting for such unprecedented, untrammeled powers. Reply ↓ I know we have digressed from the current topic in the comic (the job of students every where!), but thanks for the timely information. I hope you are correct! Reply ↓ Thank you again. I’d come across the Orenstein decision a couple of days ago, and was just on my way back to post a link here — but you beat me to it. I’m still studying it, but it does have a lot of good background and references. There certainly seems to be a wide gap between explicitly authorized and explicitly prohibited that’s filled, and intentionally so, by the AWA — but perhaps shouldn’t be completely filled. That does perhaps rate some SCOTUS attention in general. Even if Congress gets around to legislation on particular points in between those poles, there will always be others that aren’t specifically addressed. Reply ↓ VERY late to the game. What about something that is traditionally not self-incriminating (fingerprints) becoming something that has been traditionally self-incriminating (cell phone password)? Can LEOs use your fingerprint to unlock your cell phone without your consent? Reply ↓ Class Participation Cancel replyYour email address will not be published. Required fields are marked *Comment * Name * Email * Website Save my name, email, and website in this browser for the next time I comment. Δ Post navigation If you're on desktop, you can navigate with your left and right arrows.