> Authorities, citing a “foregone conclusion exception” to the Fifth Amendment, argued that Rawls could not invoke his right to self-incrimination because police already had evidence of a crime. The 3rd Circuit panel agreed, upholding a lower court decision.
I do not follow the logic here, what does that even mean? It seems very dubious. And what happens if one legitimately forgets? They just get to keep you there forever?
Lawyer here - let me try to help.
This is an area that seems to confuse a lot of people because of what the 5th amendment says and doesn't say.
The reason they can't force you to unlock your phone is not because your phone contains evidence of stuff. They have a warrant to get that evidence. You do not have a right to prevent them from getting it just because it's yours. Most evidence is self-incriminating in this way - if you have a murder weapon in your pocket with blood on it, and the police lawfully stop you and take it, you really are incriminating yourself in one sense by giving it to them, but not in the 5th amendment sense.
The right against self-incrimination is mostly about being forced to give testimonial evidence against yourself. That is, it's mostly about you being forced to testify against yourself under oath, or otherwise give evidence that is testimonial in nature against yourself. In the case of passwords, courts often view it now as you being forced to disclose the contents of your mind (IE live testify against yourself) and equally important, even if not live testimony against yourself, it testimonially proves that you have access to the phone (more on this in a second). Biometrics are a weird state, with some courts finding it like passwords/pins, and some finding it just a physical fact with no testimonial component at all other than proving your ability to access.
The foregone conclusion part comes into play because, excluding being forced to disclose the contents of your mind for a second, the testimonial evidence you are being forced to give when you unlock a phone is that you have access to the phone. If they can already prove it's your phone or that you have access to it, then unlocking it does not matter from a testimonial standpoint, and courts will often require you to do so in the jurisdictions that don't consider any other part of unlocking to be testimonial. (Similarly, if they can't prove you have access to the phone, and whether you have access to the phone or not matters to the case in a material way, they generally will not be able to force you to unlock it or try to unlock it because it woudl be a 5th amendment violation).
Hope this helps.
> excluding being forced to disclose the contents of your mind for a second
This seems like a key point though. What's the legal distinction between compelling someone to unlock a phone using information in their mind, and compelling them to speak what's in their mind?
If I had incriminating info on my phone at one point, and I memorized it and then deleted it from the phone, now that information is legally protected from being accessed. So it just matters whether the information itself is in your mind, vs. the ability to access it?
There are practical differences - phones store a lot more information that you will keep in your mind at once.
You can actually eliminate phones entirely from your second example.
If you had incriminating info on paper at one point, and memorized it and deleted it, it would now be legally protected from being accessed.
One reason society is okay with this is because most people can't memorize vast troves of information.
Otherwise, the view here would probably change.
These rules exist to serve various goals as best they can. If they no longer serve those goals well, because of technology or whatever else, the rules will change. Being completely logical and self-consistent is not one of these goals, nor would it make sense as a primary goal for rules meant to try to balance societal vs personal rights.
This is, for various reasons, often frustrating to the average HN'er :)
And why do they need to unlock your phone if they already proved you did the crime?
It means that if all the other evidence shows that the desired evidence is on the computer, then it is not a question of whether it exists, so youre not really searching for something. Youre retrieving it. That doesn't implicate the 4th amendment.
Unlocking/forced unlocking is not a 4th amendment issue, but a 5th amendment one.
The 4th amendment would protect you from them seizing your phone in the first place for no good reason, but would not protect you from them seizing your phone if they believe it has evidence of a crime.
Regardless, it is not the thing that protects you (or doesn't, depending) from having to give or otherwise type in your passcode/pin/fingerprint/etc.
You're delusional. When ICE starts executing people on the spot for not giving up iPhone passwords, I'll eat my words.
???
I don't think that was the comment I was originally trying to reply to. Strange.