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Comment by Barrin92 | Hacker News Reader

I'm a little bit skeptical about the claim that refusing access to a phone falls under the right of not self incriminating. There is such a thing as a lawful search of property, and when someone comes to you with a warrant to search your car in particular if it involves an ongoing crime you certainly cannot refuse, and pretending you forgot the keys isn't going to do you much good either.

I don't think phones are particularly special in that regard. The bigger issue seems to be that phone searches are often attempted in unlawful manner.

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I do not believe that it is acceptable to consider as equivalent actions the search through a house or other property, or a body search, with reading the memory of a computer or of a smartphone or even with the reading of a (possibly encrypted) notebook.

Any external memory, regardless whether it is a flash memory, a magnetic disk, an optical disc, or just a piece of paper, is just an extension of the memory from your brain.

Admitting that there is a reason for anyone else but the owner to read a memory device is the same with admitting that they have the right to obtain any information that is stored inside your brain.

Even if for now the only technical means for obtaining the information stored in the brain is torture, that may change any time, if someone will ever discover how the biological memories are stored.

When that will happen, it will be too late to claim that physical search is not the same thing with reading memories, if this is not already established now.

Even this French court decision is just a method of using torture for obtaining the information stored in the brain memory of a person.

Because they can no longer use a good beating with "nerf de boeuf" for obtaining the information from the suspect, the beating is replaced as a torture method with the threat of imprisonment and of a huge fine, this being supposedly a more civilized technique.

The logical conclusion from that would be that destroying a persons notebook would be equivalent to violence causing brain damage, and so assault on a person. I’m aware of the theory of extended mind this notion is based on, and that’s not going to fly in any real world legal system any time soon. Even Clark and Chalmers that came up with the concept of extended mind don’t think that actually makes practical sense.

What do you make of the argument that if you give the police your phone, you are in fact fully cooperating by giving them all data on that phone, and it's not your fault if they don't have sufficient information to interpret that data? To take a different example, if Bob is writing things down in a notebook, but using some kind of secret language or code that he made up, it seems pretty clear that while the police have the right to seize the notebook, Bob correspondingly has the right to refuse to translate for law enforcement. Similarly, maybe Bob's code is a little more complicated, and requires using a calculator to compute what each codeword should be. It still seems like Bob has a right not to answer. Is using a computer rather than a calculator to do the encryption the final straw?

>you certainly cannot refuse

this is true but you don't have to actively help/participate in the search. giving out a password is - to me - actively helping vs just standing by and watching what the cops are doing.

Your analogy actually supports not giving up a password: if you pretend to lose your keys, it's not illegal to avoid helping the cops find them.

I'm not convinced that's true because I feel like I'm getting hit with obstruction next, also depending on the country in question of course.

But the important point is this isn't about self-incrimination. If you accept that a search of property can be ordered then that implies that authority can compel you to actually see the search through. In the physical world the police would just break your lock. Can't do that with encryption, but that's not a legal argument. If someone was screaming in a trunk and cars had unbreakable locks, that wouldn't be a justification to not compel the driver to open it.

> If you accept that a search of property can be ordered then that implies that authority can compel you to actually see the search through.

Except, it doesn't. If police present a warrant at your door they can't force you to help them open the bank vault in your basement.

> If someone was screaming in a trunk and cars had unbreakable locks, that wouldn't be a justification to not compel the driver to open it.

Now you've moved the goalposts from "search and seizure" to "crime actively in progress". These things are not the same, ethically or legally.

Oh yes they can force you to see a search through. I had a federal search warrant executed where a judge explicitly gave permission for medical personnel to "internally search" my body. They're unable to do that without your cooperation.

they can't force you to help them open the bank vault in your basement.

They can if that vault is explicitly mentioned in the warrant.

"if you pretend to lose your keys, it's not illegal to avoid helping the cops find them."

I would be careful with that assertion - that likely depends on the jurisdiction, but I'm quite convinced that this would be obstruction of justice. It may be hard to prove that you're doing that, but if they manage to do that, it would actually be a crime - once you're aware that there's a criminal proceeding, actually disposing of these keys so that cops wouldn't access the evidence would be obstruction of justice, and so would be intentionally asserting to the cops that you don't have the physical keys if you actually do have them (the right to remain silent does not protect making false statements). For example, there's quite a lot of precedent for obstruction of justice by hiding a gun that was being sought by an investigation; I seem to recall reading about a case where the actual murder could not be proven in court but the likely culprit was convicted for obstruction of justice by throwing the murder weapon into the river which was captured by cameras.

However, I would say that you are quite likely to get away with this - just not because it's legal but rather because the circumstances making the difference between fair play and felony may be very hard to prove and prosecution might not bother unless they want to make a point by doing that.

Safes with codes have existed for quite awhile, I would expect that there is precedent there if the police can make you open them/provide the code.

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