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The police cannot force you to tell them the passcode for your phone. Forcing you to turn over or type in your passcode violates the Fifth Amendment privilege against self-incriminationthe privilege that allows people to plead the Fifth to avoid handing the government evidence it could use against them. And if you have a phone thats encrypted by default (which we hope you do), forcing you to type in your passcode to unlock the device means forcing you to decrypt your phone, too. That forced translationof unintelligible information to intelligiblealso violates the Fifth Amendment.

But theres a problem: not all law enforcement officers have received the memo. In one particularly egregious case, military investigators forced the defendant, Sergeant Edward J. Mitchell, to unlock and decrypt his iPhone 6 after he asked for a lawyer. Not only was the investigators continued interrogation of Sgt. Mitchell without a lawyer a clear violation of U.S. Supreme Court precedent, but compelling him to unlock and decrypt his phone also violated the Fifth Amendment. The case is currently on appeal to a federal military appeals court, and we filed an amicus brief with the court explaining why.

The Fifth Amendment privilege against compelled self-incrimination protects testimonial communications. Testimonial communications are those that require a person to use the contents of his own mind to communicate some fact. Testimonial communications dont have to be verbal; the key is that the information conveyed must come from the suspects own mind. As we explain in our brief, compelled passcode-based decryption is inherently testimonialand thus always prohibited by the Fifth Amendmentfor two reasons.

First, the compelled entry of a memorized passcode forces a person to reveal the contents of their mind to investigatorscontents that are absolutely privileged by the Fifth Amendment. As far as the Fifth Amendment is concerned, theres no difference between forcing a person to type their passcode directly into their phone and forcing them to say it out loud to an investigator. The trial judge in this case understood that and found that typing in a passcode was a testimonial act. So just by forcing the defendant to unlock his phone, the investigators violated his Fifth Amendment right.

Second, the process of decryption itself is testimonial because it involves translating unintelligible, encrypted evidence into a form that can be used and understood by investigatorsagain relying on the contents of the suspects mind.

Encryption transforms plain, understandable information into unreadable letters, numbers, or symbols using a fixed formula or process. When information is encrypted on a phone, computer, or other electronic device, it exists only in its scrambled format. If Sgt. Mitchells phone had merely been locked but not also encrypted, had the officers broken into the phone, they would have been able to access and understand the information stored on the phone. But since the phone was encrypted, if they had tried to break into the phone, they would have found only scrambled, encrypted data; they wouldnt have been able to understand it. The officers needed Sgt. Mitchell, and his unique knowledge, to translate the information on the phone into its unscrambled, intelligible state for them to be able to use it against him. In other words, they were seeking transformation and explanation of data by an accused of the very data they sought to incriminate him with. This thus violated the Fifth Amendment for a second and independent reasonbecause of the nature of compelled decryption.

Oral argument in this case is scheduled for 12:30 p.m. on April 4, 2017 at the University of Notre Dame Law School in Indiana, as part of the Court of Appeals for the Armed Forces student outreach program. We hope the court holds that, because of the very nature of decryption, compelled passcode-based decryption hits at the heart of the Fifth Amendments privilege against self-incrimination.

Thanks to the American Civil Liberties Union and ACLU of the District of Columbia for joining our brief.

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EFF to Court: Forcing Someone to Unlock and Decrypt Their Phone Violates the Constitution - EFF

The Telegraph

Man's murder conviction, life sentence upheld on appeal The Telegraph Dinkins also challenged his conviction on the grounds that Lowe, who invoked his Fifth Amendment right against self-incrimination, could have given some useful testimony without incriminating himself. Dinkins' allegation of error, however, is not ...

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Home Opinions Trumps immigration order and how the Ninth got itwrong

By thekeystonenews on March 3, 2017

Governments appeal to the Ninth Circuit results in court errors

By Arthur H. Garrison

Staff Writer

On Feb. 9, the political drama of President Trumps executive order took a turn when his opponents translated a political fight into a constitutional question and thus dragged the courts into the ring of battle.

This is nothing new. But I will leave discussion of that political truth for another day.

President Trump issued an executive order putting a stop on immigration from seven specific countries. He did so under a federal statute 8 USC 1182(f) which states,

Whenever the President finds that the entry of any immigrants or of any class of immigrants into the United States would be detrimental to the interests of the United States, he may, by proclamation, and for such period as he shall deem necessary, suspend the entry of all immigrants or any class of immigrants as immigrants or nonimmigrants.

A limitation on that power is noted in 8 U.S.C. 1152(a)(1)(A) which states, regarding the granting of visas. No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the persons race, sex, nationality, place of birth or place of residence.

The case went before the Ninth Circuit on appeal by the government asking for an emergency stay on the Temporary Restraining Order (TRO) that was granted by the District Court Washington. To prevail, the government had to establish that it was likely to prevail on the merits. The merits should have been based on sections 1182 and 1152.

It is a legal maxim that if a government action can be held lawful or unlawful based on statutory interpretation, the constitution is not to be invoked.

In its brief, the Trump Administration asserted that the executive order was lawful under section 1182. The states of Washington and Minnesota, in part, argued that the executive order violated section 1152. The stated goal of the executive order was to prevent infiltration by foreign terrorists or criminals.

Pursuant to that goal, the order stated, I hereby proclaim that the immigrant and nonimmigrant entry into the United States of immigrants from [Iraq, Syria, Libya, Somalia, Sudan, Yemen and Iran] would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days.

The state response was that the suspension was a vainly disguised ban on all Muslims, which is prohibited under section 1152.

The problem is that the Ninth Circuit opinion bypassed this argument entirely. There was no mention of either statute or the legal arguments that they provide either side.

The court bypassed the true legal dispute and engaged in the Fifth Amendment arguments that Washington and Minnesota asserted, in part because they had a weak argument standing on section 1152 alone.

The Fifth Amendment Due Process Clause protects a persons right to life, liberty and property and prevents the government from taking it without a hearing.

The opinion asserted that under the Fifth Amendment Due Process Clause, the executive order violated the rights of legal residents, citizens and immigrants who wish to return to the United States and travel from the United States.

The government, in its papers and at oral argument, asserted that the application of the order to the first two groups was an error in application and would no longer apply to them.

That should have made the entire issue regarding the order and its application to legal immigrants and citizens moot. The court held that since the order was applied to citizens and legal immigrants in the first two days of the order and there was no official proclamation from the president himself preventing such application, the court could not take the word of a legal memo from the White House Legal Counsel that similar application would not occur in the future.

As such, the executive order violated the Fifth Amendment. To make a long story short, there is no Fifth Amendment right for people who are not citizens or legal residents to assert in the first place, and in the second, immigrants who are not in the United States have no right to a visa.

The Fifth Amendment applies to those who have property rights in the United States. That property right exists by being physically present, having legal status or being a citizen.

It is true that immigrants have a right to a hearing once in the United States, but that is only to determine if they are illegal and should be removed.

It does not create a right for travel, and the right to a hearing does not translate into a right to come to the United States from another country. To get around this, the court held that immigrants who have contracted with the state universities to come into the United States as students or teachers have created a Fifth Amendment Due Process property right to travel, that the state governments can defend on the immigrants behalf.

Since the government could not prove, to the Ninths satisfaction, that it would prevail on the due process claim because it could not prove people from the seven countries were a threat, they were not entitled to an emergency stay of the TRO. The government lost because it was held to a due process test, not to whether its executive order could be supported under section 1182. The court chose the wrong test.

But this error may not be long-lived. A day after the decision, the Chief Judge of the Ninth Circuit informed the government and the states of Washington and Minnesota that a judge on the court had made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panelshould be reconsidered en banc.

The court explained in a press release, Under Federal Rules of Appellate Procedure and the Ninth Circuit General Orders, a circuit judge can also request that a vote be held on whether a decision should be reheard by an en banc panel, even if the parties have not requested it. This procedure is termed a sua sponte en banc call.

The Chief Judges order gave both parties a deadline of Feb. 16. It said, Setting forth their respective positions on whether this matter should be reconsidered en banc.

The court explained in its release, After the briefs are filed, a vote is scheduled on the en banc call. If a majority of the active, non-recused judges vote in favor of rehearing en banc, then the en banc court rehears the case. The en banc court consists of the Chief Judge, and 10 non-recused judges who are randomly drawn.

With such a request, it is almost certain that the Ninth will review the decision en banc. Because many believe the panel decision was wrong on the law, there is a good chance this decision will be overruled.

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Trump's immigration order and how the Ninth got it wrong - The Keystone Newspaper

Posted on February 24, 2017

Police cannot walk into a building and order everyone inside to unlock their iPhones via fingerprint scan, an Illinois federal court has ruled.

The case arose from police efforts to disrupt a suspected child pornography ring. They sought permission to enter a premises, and to demand that its inhabitants unlock their iPhones with Touch ID, believing that incriminating evidence may be stored on such devices.

In his ruling, Judge M. David Weisman determined that the broadness of this approach violates Fourth Amendment protections against unreasonable search and seizure, and Fifth Amendment protections against self-incrimination. With respect to the former, the judge essentially suggested that police ought to have specific suspicions against particular individuals, and cannot search someones phone just because they happen to be on the premises, though he emphasized that its the context in which fingerprints are taken, and not the fingerprints themselves, that raises concerns. As for the Fifth Amendment, he ruled that the fingerprint scan itself can be self-incriminating, since by performing fingerprint unlock a suspect is testifyingthat he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its contents.

It should be a welcome ruling from the perspective of privacy advocates like the Electronic Frontier Foundation, which decried a similar police effort in California last autumn. But with a recent Minnesota Court of Appeals ruling finding that a compelled fingerprint unlock is no more testimonial than furnishing a blood sample with respect to Fifth Amendment concerns, this is still very much a contested legal frontier.

Sources: Forbes, Ars Technica

February 24, 2017 by Alex Perala

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Compelled Fingerprint Unlock Violates Fifth Amendment: Federal ... - findBIOMETRICS

This article first appeared on the Verdict site.

Donald Trump may have had a rocky first three weeksin office, but they now look like a blissful honeymoon compared to the fourth one.

Amida flurry of leaks and reports of staff disarray, Trump suffered his first defeat on a Cabinet nomination, withdrawing his choice for labor secretary. He gave up on his appeals in State of Washington v. Trump, leaving the order suspending his travel ban intact.

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Anonymous aides portrayed the nations CEO roaming the White House alone at night in his bathrobe, watching cable news obsessively, and calling his national security adviserMichael Flynnat 3 a.m. to ask whether a strong or weak dollar was better for America. That same retiredLt. Gen. Flynn soon found himself defenestrated from the young administration, ostensibly for misrepresenting his contacts with the Russian ambassador during the transition.

Flynns departure revived long-standing charges that Trumps election was propelled by a Russian intelligence operation. A thorough investigation of these chargeswere the Republican-controlled Congress to permit onecould well implicate key campaign aides as coconspirators, and perhaps reach the president himself. Impeachment began to loom as a distinct (though distant) possibility.

It would normally take a Category 5 hurricane or an alien invasion to move such a story off the front pages, but President Trump may have momentarily succeeded in doing so with his 80-minute press conference. In a performance that seemed to rattle even sympathetic observers, Trump lashed out against the media and his critics with a vehemence that often bordered on incoherence.

MSNBCs Joe Scarborough tweeted that Republicans on the Hill were panicked behind the scenes by Trumps performance. Fox News chief anchor Shepard Smith called Trumps allegations against the media absolutely crazy. CNNanchor Jake Tapper judged his performance unhinged and wild. One unnamed Republican senator texted CNNs John King: He should do this with a therapist, not on live television.

Donald Trump speaks as Vice President Mike Pence looks at the Congress of Tomorrow Republican Member Retreat on January 26 in Philadelphia. Dean Falvy writes that Trumps marathon press conference refocused attention on his mental competence and stability. Critics have never been shy about diagnosing Trump with various psychological conditions, the most popular being narcissistic-personality disorder. But many self-obsessed people are capable of functioning at a high level professionally, as Trump has for much of his life. But the astonishing achievement of reaching the presidency seems to have aggravated Trumps insecurities and grievances, to the point where mental illness has become the elephant in the White House Situation Room. Alex Wong/Getty

While the Russia story isnt going away, Trumps press conference refocused attention on his own mental competence and stability. Critics have never been shy about diagnosing Trump with various psychological conditions, the most popular choice being narcissistic-personality disorder.

But many self-obsessed people are still capable of functioning at a high level professionally, as Donald Trump apparently has for much of his life. But the astonishing achievement of reaching the presidency seems to have aggravated Trumps insecurities and grievances, to the point where mental illness has become the elephant in the Situation Room.

Some mental health professionals have begun to overcome their reticence (and perhaps professional standards) to argue that the grave emotional instability indicated by Mr. Trumps speech and actions makes him incapable of serving safely as president.

Is the president able to distinguish between fact and fantasy? Can he absorb and process complex information? Does he have the capacity to make rational decisions? To many observers of his press conference, the answers were not reassuring.

Can anything be done about it? The answer to that question is not simple either.

The Twenty-fifthAmendment provides a process for the president to declare himself unable to discharge the powers and duties of his office. In that case, the vice president becomes the acting president until the president recovers from his disability.

This is simple enough when the president is aware of an upcoming medical procedure and voluntarily invokes the Twenty-fifth Amendment for a limited period of time, as President Reagan and President George W. Bush did on three separate occasions. But what if the president is so physically or mentally disabledas to be unable to recognize or acknowledge his own disability?

As I discussed in a previous article on Trumps chances of completing his term, Section 4 of the Twenty-fifth Amendment provides an involuntary procedure allowing the vice president and a majority of the Cabinet to notify the leaders of Congress that the president is disabled. In that case, the Vice President shall immediately assume the powers and duties of the office as Acting President.

This assures continuity of government if the president falls victim to a sudden illness. But if the president recoversor disputes the existence of a disability at allhe can attempt to reclaim his office by informing Congress. This will happen automatically, unless the vice president and a majority of the Cabinet provide a further declaration to Congress within four days that the president remains disabled.

If that happens, Congress must convene and make a high-stakes decision: Who is entitled to exercise the powers of the presidency, the president or the vice president?

But the president has a clear advantage in this contest: He will regain his powers unless the House and the Senate each confirm his disability by two-thirds majorities. To put it in the simplest terms, the support of either 34 senators or 145 members of the House would be sufficient to restore power to an allegedly disabled president.

In the case of physical disability, invocation of the Twenty-fifth Amendment is likely to be straightforward. In most cases, an inability to communicate will signal the presidents disability, and the restoration of communication will mark the end of it.

Mental disability is an entirely different kettle of fish. It is not necessary to argue that the president is insane in a legal or clinical sensethe constitutional standard is simply whether he is unable to discharge the powers and duties of the office.

What if a president performs his duties, but does so erratically and irrationally? And if the president loudly insists that he is capable, will the vice president and Cabinet dare invoke the Twenty-fifth Amendment, even if they are privately convinced that he is not?

As long as he retains the loyalty of a substantial minority in either the House or Senate, the president can turn the tables on his scheming lieutenants and reclaim his office. Once restored to his powers, the president can (and certainly would) dismiss the Cabinet members who doubted his capacity.

While the vice president cannot be removed from office, he can be sidelined and humiliated in countless ways until his term is over. And that assumesthe president would not seek even more extreme forms of vengeance.

Under these circumstances, the vice president and Cabinet may fear usingthe Twenty-fifth Amendment to constrain an unbalanced president until his madness has put the nation in serious peril. Is there any way out of this dilemma?

Collecting the required signatures on a declaration of disability from a majority of the Cabinet would be no simple task for Vice President Pence. He would have to do so under the nose of President Trump and his watchful staff.

Pence and his allies would have to act before any sympathetic Cabinet members are dismissed for suspected disloyalty. Any attempt by Pence or the Cabinet to consult with Congress in advance to ensure support would likely blow the secrecy of the operation and leave it dead in the water.

But Congress can act on its own to give Pence and the Cabinet the assurance they need to proceed. For example, Congress could pass a resolution, by a two-thirds vote in each House, urging the invocation of the Twenty-fifth Amendment. This would largely remove the threat that a declaration of disability would be reversed. Pence and the Cabinet could then relieve the president of his duties without much fear that Trump could recapture power within days or weeks.

There are several downsides to this approach, however. The need for prolonged debate in Congress over such a resolution would give President Trump and his supporters an opportunity to take countermeasures. He could threaten members of his party in Congress and extract declarations of fealty from the Cabinet. Individuals suspected of disloyalty could be isolated from the herd and subjected to intense pressure.

Vice President Pence would almost surely have to go on the record as opposing the resolution. This would make it awkward, to say the least, for Pence and the Cabinet to turn around and invoke the Twenty-fifth Amendment after its passage. Even more dangerously, if the resolution failed to gain a two-thirds majority in the Senate orHouse, the Twenty-fifth Amendment would essentially be deactivated as an option. Invoking it wouldnt just be risky for Pence and his cohortsit would border on political suicide.

However, there is a more subtle waythat Congress can choose to smooth the path for a declaration of disability. Individual members of Congress could send private letters to Vice President Pence, giving him confidence of support in the event of a Twenty-fifth Amendment showdown. Such a letter might look something like this:

CONFIDENTIAL

Dear Vice President Pence:

Based on President Trumps public statements and conduct in office, I have grave and increasing concerns about his capacity to perform the duties of the presidency.

If you and a majority of the principal officers of the executive departments determine that President Trump is unable to discharge the powers and duties of his office, I will give substantial weight to that determination in the event that Congress is required to decide the issue in accordance with Section 4 of the Twenty-fifth Amendment to the Constitution.

This letter will remain valid unless and until I revoke it in writing to you. You may disclose the existence of this letter on a confidential basis to members of the Cabinet. You may release it publicly as you see fit in the event that Section 4 of the Twenty-Fifth Amendment is invoked.

Such a letter would respect the separation of powers on two points. First, it would recognize that the vice president and the Cabinet (rather than Congress) must initiate the involuntary disability procedure. Second, by only promising to give substantial weight to their determination, it would preserve the power given to Congress by the Twenty-fifth Amendment to act as a check against usurpation of power by the vice president and the Cabinet.

Most importantly, such an approach would allow members of Congress to remain out of Trumps line of fire until a critical mass has been achieved. At the same time, it would shield Pence and the Cabinet from the impossibly delicate task of lining up support before invoking the Twenty-fifth Amendment.

The vice president, as the presiding officer of the Senate, maintains an office on Capitol Hill. Members of Congress could deliver their confidential letters there, where Pence would store them in a safe until needed, away from the prying eyes of the White House staff. The letters could even be handwritten, in order to avoid leaving digital tracks on congressional computer systems.

Once assured of sufficient support in Congress, especially from its GOP contingent, Vice President Pence would still need to persuade a majority of the Cabinet to support a declaration of presidential disability. This could be a formidable task. But doing so would be much easier with the knowledgeand, if necessary, the proofthat the declaration is very unlikely to be overturned by Congress.

With the outcome of any contested vote in Congress more or less assured, Acting President Pence would also have less to fear from extralegal resistance by President Trump. With little prospect of his powers being restored by legal means, Trump would find it hard to convince loyalists and waverers within the government to risk dismissal or prosecution by obeying his orders instead of Pences.

All this can be done by members of Congress at little risk to themselves. They can avoid taking a public stance on Trumps mental capacity until a critical mass has gathered and Pence has made his move. If, on the other hand, the movementto invoke the Twenty-fifth Amendment fails to gather sufficient steam in Congress, any letters received can quietly remainin Mike Pences care and disposed of at the end of his term.

If Trump resigns, or is impeached and removed from office for some other reason, the effort would become a historical footnote. And if Trump steadies himself in office and somehow dispels doubts about his mental fitness? Well, that would be the biggest surprise yet from a relentlessly astonishing man.

Unless that happens, the Twenty-fifth Amendment will be on the mind of every member of Congresswhether they admit it or notuntil the day Donald Trump relinquishes the presidency. Perhaps they will sleep better at night having placed their trust safely in the vice presidents hands. Whether Mike Pence will sleep well with that knowledge is a question for another day.

Dean Falvy is an attorney with an international business practice. He teaches constitutional law, international business transactions and other subjects at the University of Washington School of Law in Seattle.

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Pence's Best Chance of Mounting a Coup Against Trump - Newsweek