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Speaking of the 5th - I have always wondered: Does the 5th Amendment apply equally to non US citizens? Can I as a Scandinavian Viking [with a blunt sword] plead the 5th, if ever faced with a US court? Thanks.
Life is too shor
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When I went to the States, they searched me at the Airport and on finding I was unarmed they gave me a gun.
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Although as a foreign national, you are technically not protected by the Constitution, which only applies to citizens, all countries where the Rule of Law prevails afford foreign nationals the same protections in law offered to their own citizens. In short, yes, you cannot be forced to incriminate yourself. You can "plead the 5th."
"Pleading the 5th" is not a strategy that works very well in criminal prosecution. Generally if the police arrest you, there is evidence other than your own words that points to you. The investigation and prosecution will probably go on whether you confess or not.
Famous media depictions of witnesses pleading the 5th come from testimony before Congress, which are not themselves criminal prosecutions. In this circumstance, "pleading the 5th" is a gambit, an excuse given to refuse to answer a question, whether or not the testimony might be incriminating in a subsequent criminal prosecution.
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Only if you are a MLB baseball player.
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Yes
There are two types of people in this world: those that pronounce GIF with a soft G, and those who do not deserve to speak words, ever.
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I am not sure but I have heard of a place called Guantanamo Bay...
“That which can be asserted without evidence, can be dismissed without evidence.”
― Christopher Hitchens
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Yes.
In addition to the equal protection granted in the 14th Amendment, the Supreme Court has held that non-citizens are entitled to due process under the Fifth Amendment. They have the right to hold non-government jobs and send their children to public school. In contrast, the SC has denied non-citizens the right to have state-funded vocations such as teachers or police officers. The SC has also held that foreign nationals could be detained or deported based on nationality, such as in the case of the USA Patriot Act of 2001.
From Does the Constitution Protect Foreigners?[^]
/ravi
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The concept of equality before the law has been around for a long time Exodus 12:49
Since, in the US, one is NOT required to carry an identity card, one would have to be treated initially the same as a citizen. Now, a strict constructionist interpretation of the US Constitution would (should) take note that the nationality to whom the laws apply is not specified, except in the case of who can rule the country (i.e., president must be born a citizen). This is, in fact, a strengthens of the concept that it crosses the boundaries of citizenship.
However - as with software - the human element of users gets involved and elephant's everything up.
| "The difference between genius and stupidity is that genius has its limits." - Albert Einstein | | "As far as we know, our computer has never had an undetected error." - Weisert | | "If you are searching for perfection in others, then you seek disappointment. If you are seek perfection in yourself, then you will find failure." - Balboos HaGadol Mar 2010 |
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Alright, what did you do? Confess. 
There are only 10 types of people in the world, those who understand binary and those who don't.
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Cant tellya. The 5th u kno.
Life is too shor
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megaadam wrote: The 5th u kno.
Doesn't apply to Code Project Forums! Fess up!
I am not a number. I am a ... no, wait!
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There are a couple things that strike me here:
1) Is the Encryption tied to the chipset such that the FBI Cannot CLONE the medium, and keep trying the passwords on the cloned medium and when it gets wiped, they re-clone it. I know this is how they handle hard drives.
2) All of the phone companies kept ALL of the text messages and phone calls. So, they are looking for apps and communications that are atypical (encrypted). But ANYONE on the other end has to have dropped their "link" to that phone! (If it exists)
3) The 5th amendment protects us from having to turn over our passwords. Now, our devices can be searched without our permission. Interesting.
4) When the government steps in and says CREATE something, and charge a REASONABLE fee. That is interesting. During the stock market crash, one of the banks HAD a set of RISK spreadsheets they built. They charged BILLIONS for the Treasury to use them to figure out the depth of the risks. Is that Reasonable? Is calculating the loss of business, and future loss of business part of REASONABLE?
5) As someone who has hacked in the OLD Days (never against strong encryption). This feels like a RUSE (like the 30 seconds required to trace a call, which is bogus). To convince the enemy that they cannot do this. HENCE the one phone at a time stuff, etc.
6) Does ANYONE BELIEVE that ONCE Apple does this, the FBI wont reverse engineer it, and use it?
<if you="" have="" either="" an="" image="" of="" the="" original,="" and="" new,="" can="" potentially="" diff="" os="" and
="" reverse="" engineer="" changes,="" etc.="">
7) Once this is done, NY has hundreds of phones they want opened! Hmmm...
After this many weeks... What is the half-life of the data?
The one thing I realize is that the media is CLUELESS (like the public) on technology.
The IRS is incapable of finding and getting emails for 18 months, which should be easy. But
a company has to drop everything and do this? How about taking care of it AFTER the FBI clears the HRC investigation?
Just frustrated. I understand the "scare" tactic here. But there is no nuke out there. We seem more likely to water board Tim Cook than a terrorist, that concerns me.
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Kirk 10389821 wrote: Is the Encryption tied to the chipset
If I'm reading the details correctly, yes it is. In recent iPhones, the encryption relies on a hardware key in addition to your passcode, in a system called the "Secure Enclave".
The Secure Enclave is a separate computer inside the iPhone that brokers access to encryption keys for services like the Data Protection API (aka file encryption), Apple Pay, Keychain Services ...
When you enter a passcode on your iOS device, this passcode is "tangled" with a key embedded in the SE to unlock the phone. ... There is nothing that iOS can do about the SE: it is a separate computer outside of the iOS operating system that shares the same hardware enclosure as your phone.
Kirk 10389821 wrote: All of the phone companies kept ALL of the text messages and phone calls.
The iMessage service apparently has end-to-end encryption. Even if the phone company had captured the messages, they wouldn't be able to read them.
Apple Explains Exactly How Secure iMessage Really Is | TechCrunch[^]
Kirk 10389821 wrote: Once this is done, NY has hundreds of phones they want opened!
They'll have to wait - the FBI apparently has another 12 iPhones it wants to apply this to, none of which are being linked to "terrorism":
FBI reportedly already pushing for data from 12 additional iPhones | iMore[^]
"These people looked deep within my soul and assigned me a number based on the order in which I joined."
- Homer
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Richard Deeming wrote: If I'm reading the details correctly, yes it is. In recent iPhones, the encryption relies on a hardware key in addition to your passcode, in a system called the "Secure Enclave".
This phone was not one of those.
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Kirk 10389821 wrote: Now, our devices can be searched without our permission
I believe the 'owner' of the phone has given consent.
"Go forth into the source" - Neal Morse
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Isn't one of the upshots of this whole farce that Apple is effectively declared the owner by default of all its phones?
I am not a number. I am a ... no, wait!
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Ummm... not sure where you saw that. I've not seen it even hinted at.
The phone in question was a work phone - owned by a local government agency.
There are two types of people in this world: those that pronounce GIF with a soft G, and those who do not deserve to speak words, ever.
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Kirk 10389821 wrote: Now, our devices can be searched without our permission. Interesting.
There's nothing new in that. A search warrant has always trumped personal permission. Criminal investigations would be effectively impossible otherwise.
I am not a number. I am a ... no, wait!
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Technically, if I handed, as REQUIRED an encrypted file.
I do NOT have to decrypt the file under self-incrimination protection.
But this is an end-around on that.
I think my gut tells me this is a "made up" case. The FBI Mishandled the owners password change, in order to go after this issue and get the court ruling, because they know public opinion is probably on their side. But if you give the government an inch, they are looking for the last mile!
I don't much side with Apple. But this is overreach. The FBI has a useless device. Move on.
Besides I do NOT believe WHAT the messages said are important. In Theory, you only need to identify WHO they were talking to. And who they talked to. Until you have the map.
But this is an interesting case!
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The FBI has not asked for Apple to break into this phone. They have asked Apple to develop an approach that allows them to completely bypass all security, thus making them malleable to a FISA court ruling for any or all phones in the future.
This is nothing more than tyranny for the sake of tyranny. Apple should not cave. If they do, we're all even more screwed than we were before.
".45 ACP - because shooting twice is just silly" - JSOP, 2010
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You can never have too much ammo - unless you're swimming, or on fire. - JSOP, 2010
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When you pry the gun from my cold dead hands, be careful - the barrel will be very hot. - JSOP, 2013
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Kirk 10389821 wrote: 3) The 5th amendment protects us from having to turn over our passwords. Now, our devices can be searched without our permission. Interesting.
As much as I hate to defend the government... They aren't. As mentioned by Mike, the actual owner was the local government, as it was a work phone. They gave the FBI permission to break into and search the phone.
As to the bit about passwords and the 5th Amendment... I am quite certain that the Constitution does not protect the rights of the deceased. You can't try a dead man in court, so the same dead man cannot self-incriminate; it just doesn't make sense.
All that said however, I still side with Apple on this one. Forcing them to create a tool such as they are trying to do would have many and severe consequences.
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Kyle Moyer wrote: the Constitution does not protect the rights of the deceased
Well, that's rather a matter of legal interpretation, I would have thought. It's certainly not the case that the deceased receive no protection under testate law, for example.
Just as a dead man cannot incriminate himself he is also unable to defend himself either in police interview or in court. Even if Apple does cave and evidence is obtained it is very likely to be subject to legal test on admissibility if it leads to trial for other parties.
I am not a number. I am a ... no, wait!
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9082365 wrote: It's certainly not the case that the deceased receive no protection under testate law, for example.
Perhaps also a matter of interpretation. I see it more as the living having the right to say what happens to them and their possessions after death. Once dead, that person has no right to say what is done, rather it is something they arrange while they are still living. There is also the matter of naming an executor (be it next of kin or an attorney,) who is then granted legal rights to carry out your will. Again, rights are assigned to the living.
Of course this is moot, as I was specifically referring to the Constitution, not any of the many laws that stand "under" it. You may well be right about there being laws that defend the rights of the deceased (my knowledge of the area isn't broad enough to say for sure.) I am however quite certain that the Constitution is applicable only to the living.
I read through the Constitution (just now!) trying to find anything to support this, but I can find no specific language that points in either direction. The only argument I can offer is that the majority of the rights granted in the Constitution would require the party to be living in order for them to exercise said rights. If you look at the language of the fifth Amendment, for example, it reads (in part)Quote: nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb
One clearly cannot be put into jeopardy of life when one is already dead, can they?
Anyway, this whole thing is above my pay grade, so I'll bow out gracefully. From my perspective it looks like everything is being done by the book. My only concern is that what the FBI is asking for (demanding) is a Really Bad Idea.
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I think the short answer is that Apple currently does not know "how" (that's the point of encryption). And committing resources that "might" is apparently what the FBI wants; sort of like spinning gold out of straw. The news likes to emphasize the dramatic aspects.
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