PhotoAt the beginning of 2016, controversy over phone privacy reached critical levels when Apple went head-to-head with the FBI over unlocking the contents of a phone used by one of the San Bernardino terrorists. The company had strongly opposed an order to create a backdoor that would allow investigators to access the device, saying that doing so was a violation of rights.

Although the order was eventually withdrawn due to a successful hack by the feds, Apple said that it would have set a “dangerous precedent” if it had agreed to help hack the phone. However, a decision by a Florida court may have set a related precedent that makes phone security less concrete in criminal cases.

According to Courthouse News, the appeals court ruled against a man suspected of voyeurism, saying that the accused could be compelled to reveal his passcode in order to search for incriminating photos. Judge Anthony Black reversed the decision of a trial judge who had ruled in the man’s favor, saying that compelling him to give up his password does not usurp his constitutional rights.

Violation of rights?

The defendant, named Aaron Stahl, was accused by a woman of pretending to drop his phone in order to crouch down and take photos up her skirt. Stahl reportedly ran when the woman called for help and was arrested by police, who were able to track his car license plate number.

Stahl initially told police that they could search his Apple iPhone 5, but he withdrew that consent before giving up his four-digit passcode. The officers obtained a warrant for the phone, but were unable to access any alleged pictures since they didn’t have the code. They petitioned the trial judge to have Stahl give up the password, but their request was denied on the grounds that doing so would essentially be a violation of the man’s Fifth Amendment rights.

However, Judge Black reversed that decision at an appeals hearing, saying that the passcode is not necessarily related to any criminal photos or videos that might be found.

“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,” he said.

Surrender, not testimony

The decision basically comes down to whether giving up the passcode is a violation of Stahl’s right to not testify against himself. According to the trial judge, Stahl couldn’t be forced to use the “contents of his mind” to unlock the phone – a decision that mirrors a classic law example that an accused person may be “forced to surrender a key to a strongbox containing incriminating documents,” but can’t “be compelled to reveal the combination to his wall safe.”

However, Black says that this is fallacious reasoning, arguing that the two examples are two sides of the same coin. “We question whether identifying the key which will open the strongbox – such that the key is surrendered – is, in fact, distinct from telling an officer the combination. More importantly, we question the continuing viability of any distinction as technology advances,” he said.

In the end, Black says that compelling Stahl to give up his password is more akin to surrendering a key to a lockbox and not a matter of testifying against himself. “Unquestionably, the State established, with reasonable particularity, its knowledge of the existence of the passcode, Stahl’s control of possession of the passcode, and the self-authenticating nature of the passcode. This is a case of surrender and not testimony,” he concluded.

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