iphone

Should Americans face jail time for refusing to surrender their passwords to police, or is the request alone a violation of their Fifth Amendment right against self-incrimination? According to one judge in Florida, the former is the correct answer.

Christopher Wheeler, 41, was sentenced to 180 days in jail by Broward Circuit Court Judge Michael Rothschild for failing to reveal the correct passcode to his iPhone.

Wheeler was initially arrested on charges of child abuse in March, after he was accused of hitting and scratching his young daughter. The catch is that police are claiming the evidence of this abuse—multiple photos of repeated injuries to the child—can only be found on Wheeler’s locked iPhone.

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After he was held in criminal contempt of court by Judge Rothschild in early May, Wheeler did provide a passcode to the iPhone, it just wasn’t the right one.

“I swear, under oath, I’ve given them the password,” Wheeler insisted when he appeared in court on Tuesday.

Wheeler’s case was determined on the basis of an appeals court decision, which separated the phone’s passcode from incriminating photos or videos located on the device.

In December 2016, the Florida Court of Appeal’s Second District ruled that a passcode is not related to any criminal evidence found on the phone:

 “Providing the passcode does not ‘betray any knowledge [Stahl] may have about the circumstances of the offenses’ for which he is charged. Thus, ‘compelling a suspect to make a nonfactual statement that facilitates the production of evidence’ for which the state has otherwise obtained a warrant based upon evidence independent of the accused’s statements linking the accused to the crime does not offend the privilege.”

As Wheeler was sentenced to 180 days in jail for failing to provide the passcode to his iPhone, another Florida man was facing similar demands. Wesley Victor appeared in court on Tuesday as a suspect in an extortion case that surrounded a sex-tape scandal involving Miami social-media celebrity YesJulz.

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In contrast, Miami-Dade Circuit Judge Charles Johnson chose not to hold Victor in contempt of court, ruling that he should not be expected to remember his phone’s passcode more than 10 months after his initial arrest.

Critics of the appeals court decision argue that such a requirement violates the individual’s Fifth Amendment right against self-incrimination.

The Fifth Amendment to the U.S. Constitution states:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Florida Supreme Court has yet to address the issue of whether police should have the right to demand a suspect’s passwords.

In Wheeler’s case, he will eventually have an opportunity to post bond, following an appeal. However, Judge Rothschild made it clear that there was one “Get Out of Jail Free Card” which would result in his temporary release: the correct passcode to his iPhone.

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Rachel Blevins is a Texas-based journalist who aspires to break the left/right paradigm in media and politics by pursuing truth and questioning existing narratives. Follow Rachel on Facebook, Twitter and YouTube.
  • Damiana

    This is pure bullshit and it DEFINITELY violates the Fifth Amendment. It pisses me off to have to defend a child abuser, but they’re just going to have to find other ways to prove his guilt or else pony up the dough to hire a hacker… and one of the selling points of the iPhone is that they’re hard as hell to hack.

    Since these assholes wanted to be lazy and use the law in illegal ways, this child abusing assclown is going to get paid. I hope, if they manage to convict him on other evidence, that any settlement he receives is promptly snatched away and handed over to the poor child who made his payday possible.

    • Dan Quixoté

      It makes no sense why this guy is in lockup. SCOTUS decided this in 2006 in US v Boucher, for a similarly disgusting person: Production of a physical key or other item can be compelled, but a password is *testimony* and cannot be compelled because of 5th amdmt protections. Something else people should be aware of – using a fingerprint or facial recognition to lock/unlock your digital devices does not protect them from the authorities, because you can and will be compelled to use your face or fingers to do the unlocking. But a password is still legally protected per the 2006 Boucher decision.

      Whether I want him to or not, this guy has ample grounds for appeal.

      If the court really wants access, an Israeli company called CellBrite unlocks iPhones for governments like a hot knife through butter, for only a four digit number of US dollars. Way cheaper than the five digit figure it costs to incarcerate someone for half a year ($15K).

      • Anonymous

        That is how they start it. We just want to catch child abusers and pedophiles. They are subhuman, so, who cares, right?

        Later, it will be expanded, depending on who the “enemy of the state” at the time is, Communists, Muslims, Homosexuals, Whistleblowers.

        Finally it will be “we found out all these crimes from just these bad people” and it becomes just part of “this is how we do business.”

      • BRANDONtheSNITCH

        Bull shit the iPhone 6 and later with up to date iOS is not hackablr. Apple said the next iPhone not even Apple will be able to hack.

        • Dan Quixoté

          iPhone 6 protection was broken in February this year (2017). Cellbrite started advertising that service later that month, for “qualified” entities – governments, dictators, whatever.

          https://www.cyberscoop.com/cellebrite-iphone-6-ufed-samsung-galaxy-facebook-messenger-snapchat/

          From ’99-’11 I worked on the innards of dozens of phone models for various megacorps, with aggregate volumes of those models in the hundreds of millions. They are all hackable. They will always be hackable. The only thing Apple et al can do is to try to make it harder, but it’ll never be hackproof.

          Presently working on industrial infrastructure items under contract, big concern is security; feature content and performance specs aren’t my biggest worry – it’s infosec. Personally attempting to make it virtually impossible for non-state AND state actors to infiltrate, short of physical penetration. But time will tell.

          The design form I own has recently been engaged in biomedical and aftermarket automotive product development interactions with maturing startups, with various forms of connectivity to the outside world. What’s really surprising to me is that to this day the clients aren’t thinking about InfoSec from the ground up, if at all. Literally everything in a hospital and the cars is hackable, and there no shortage of extraordinary deaths lately bearing the marks of possible device hijacking.

          Got good reason to be driving only very old cars and using only natural medicine.

    • BRANDONtheSNITCH

      He needs to demand a quick and speedy trial. Then they will be forced to get the case done without the phone.

  • sonoitabear

    Welcome to tRUMPlandia…

    • Dan Quixoté

      What’s this got to do with Trump? Judge Michael Rothschild is a Democrat, elected during the Obama administration, who ran for the Circuit Court seat his father, Ron Rothschild, held for way too many decades.

      • D. Michael Martindale

        People like sonoitabear have to blame everything on Trump. It’s how they rationalize their hysteria over him.

  • zyworski

    Here is another yahoo moron for you, he did 180 days for lying/contempt of court. As any good school boy can tell, you have a right against self incrimination and can simply take the 5th, you don’t need to be a damned liar. Stupidity should hurt.

  • channa

    If a judge issued a warrant to open the safe and search it for a photo album, that would be accepted as perfectly normal. If he refused to open the safe citing his Fifth Amendment rights, the police would have it in their power to forcibly open the safe.

    A judge has issued a warrant to open the phone and search it for photos. The difference?

    • G’ma G

      The difference is the police didn’t forcibly open it which they had the authority to do under the warrant. The guy was actually jailed for contempt of court–lying rather than remaining silent.

      • D. Michael Martindale

        And why is THAT a problem? Lying under oath is perjury. You guys are fighting the wrong battle here.

      • Damiana

        Was he under oath when he lied about the password? If not, they have no leg to stand on there.

    • Damiana

      The difference is they can’t “forcibly open” the phone like they can a safe. I mean, they can, but it’ll cost them money to hire a hacker… and the irony of asking someone to do something that (otherwise) is effectively illegal.

    • Dan Quixoté

      SCOTUS has ruled providing a password is “testimony”, which cannot be compelled under 5th amdt. Production of a physical key *can* be compelled.

  • Darkbob

    Didn’t they tell him “You have the right to remain silent”?

  • Apollyon

    His solution when he first had an indication of their interest in the phone would have been to hit the factory reset.

    • Brad

      Tampering with evidence and obstruction of Justice

  • Onan Max

    Simple. Don’t own a cell phone. They track and spy on everyone anyway.
    Life and the economy were much better back in the recent days before these gadgets popped up, making people into zombies.

  • Thot Police

    Evidence of (fill in the blank) is in the prosecution’s bank records, car black box, and ISP records. If he does not submit his entire life record, including gradeschool report cards, vaccination records, and itinerary, he will be hindering an imaginary investigation.

    There is nothing real, about the color of authority (above). It is all completely-rhetorical and alot of hot air. Don’t believe any of it.

    • Skrilla Mcskrillerson

      He was put in jail for abusing his daughter. He was known for taking videos of the abuse on his phone. You’re defending someone for abusing their child. Congratulations.

      • Scott Tactical

        Don’t worry Thot Police. He is trolling everyone with a copy paste. Robot power!

        • Thot Police

          It’s like putting moral authority, in the hands of the militia, stasi, Crips, Bloods, or Roman soldiers, in the Christmas play, to check your phone, when you would generally stay out of their way, and not have anything that interesting on your phone.

          You get interesting, confused responses, when you tell them you’re cooperating under duress, and they want to pretend that it’s not an adversarial situation.

          https://upload.wikimedia.org/wikipedia/en/thumb/d/d4/Nothing_but_trouble_poster.jpg/220px-Nothing_but_trouble_poster.jpg

          I actually got in trouble, when my childood friends reported the abuse to me, but were not supposed to talk about it.

      • Damiana

        Please don’t spam this comment section with the same remark copied over and over.

  • PRINCE4EVER O(->

    There should be a code that when entered immediately wipes the phone.

    • Jimmy Pearson

      Be smart do not keep anything on your phone.

  • Scott Tactical

    No one is talking about the judge’s name. Seems pretty important to me.

    Apple needs a wipe ability. Enter this code once and the phone wipes all media traces before opening.

    • Juan Turner

      Yes! I thought I was the only one that notice the judges name. Very fishy.

  • D. Michael Martindale

    There was a warrant involved? Then what’s the problem?

  • King Lear

    Judge Rothschild….that says it all. Criminal piece of garbage.

  • Alleged Comment

    The official must now be jailed. Preferably in the same cell. The 5th Amendment can be settled there.

  • Jimmy Pearson

    I do not know how they would not think this does not violate the fifth amendment. I do not keep any thing on my phone.

  • Lee-C.

    Problem with the first case, in this particular matter, is that a warrant for the cell phone was already issued and he was jailed for lying about the password not that he wouldn’t provide it.

    • Damiana

      That’s not how it works. He’s under zero legal obligation to provide his password. They’re just butthurt because they went out and got a warrant for an expensive paperweight.

      • Lee-C.

        You’re 100% correct in the fact that he is not required to provide his password. It’s a 5th amendment protection not to be required to provide it. The issue is that he provided an incorrect password so they’re holding him on contempt charges for failing to provide it. I agree, it’s probably due to being butthurt but they technically are working within the system

      • BRANDONtheSNITCH

        Are you are so Mat who writes the articles?

        • Damiana

          No, I am not Mr. Agorist. I am Mrs. Trull – totally different person, not even the same crotch configuration!

  • It isn’t the Fifth Amendment that’s involved here, but the Fourth.

    A password or passcode is similar to a key to your house, and your phone is physical evidence in the same manner as a bag or purse. If they have a warrant to search your phone, you are under obligation to unlock it for them or give them the pass code so they can unlock it themselves. Just as you’d be under obligation to provide access to your home or car if the police produced a search warrant — or rather, the specific areas of your home or car specified by the warrant.

    If the police don’t have a warrant, demand one. But once they produce it, you have to comply or you can and will be held in contempt.

    • Damiana

      Poor analogy. The cops don’t HAVE to demand a key to your house. They can just ask for it and, if you say no, smash down the door. Problem is, it’s not so easy to just smash your way into a phone. They’re going to have to hurry up and change the laws if they want it to be that way because as of right now, the law (or lack thereof) is on this guy’s side.

      • Not as much as you might think. In Fisher v. United States, the Supreme Court ruled that a person can be compelled to surrender documents to the prosecution, also known as “producing”, and the Fifth Amendment was no protection. There are a few caveats to note, though. The investigators knew the documents existed and could establish their existence through corroborating evidence before the request for the documents — and subsequent Court order — was made.

        That case along with another called US v. Hubbell was used as guidance in a 2012 case in the 11th Circuit called US v. Doe. In that instance, the Court ruled that Doe could not be compelled to turn over a password for encrypted hard drives because investigators couldn’t be specific on what they intended to find. They had no other evidence to establish what, specifically, is on the hard drives. They couldn’t even establish there was anything on the hard drives. Which basically means the investigators wanted to go on a fishing expedition, and the Court shut ’em down.

        In the case described in the article, the police know what they expect to find. They likely have other evidence showing that the pictures exist — likely testimony from someone else. So they can compel him to surrender the PIN lock to the phone so they can retrieve the pictures, or compel him to produce the pictures from the phone.