EnlargeThomas Hawk
reader comments 65
Share this story
Anyone who has ever watched an American crime movie or television show can practically recite the Miranda warning by heart, even if they don’t know its official name.

You have the right to remain silent.

Anything that you say or do can be used against you. You have the right to an attorney.
If you cannot afford one, one will be provided to you.

Do you understand these rights as I have read them to you?

The basic idea behind the Miranda warning is to provide someone being arrested with information about their constitutional rights against compelled self-incrimination (Fifth Amendment) during a custodial situation and to reassure them of their right to an attorney (Sixth Amendment).

This warning stems from a 1966 Supreme Court case, Miranda v.

, where a kidnapping and rape suspect, Ernesto Miranda, confessed to the crime without the benefit of a lawyer and without being fully informed of his rights to not self-incriminate.

Today, all American police officers must recite some version of the Miranda warning while taking someone into custody due to the Supreme Court’s landmark 5-4 decision.
In the half-century since the Miranda decision, a lot has changed.

For one, many of us carry smartphones containing a rich trove of personal data in our pockets that might interest law enforcement.
In fact, it wasn’t until 2014 that police officers nationwide were specifically ordered not to search people’s phones without a warrant during an arrest.
In 1966, no one envisioned a world where we carried powerful computers in our pockets, so it’s time for an update to the Miranda warning.

A modernized version would need to make clear not only that anyone can refuse to speak, but that speaking might involve inputting a passcode to open up a phone.

After speaking with several legal experts, here’s our “digital Miranda,” based on our best understanding of current law.

You have the right to remain silent.

This right includes declining to provide information that does not require speaking, such as entering a passcode to unlock a digital device, like a smartphone.

Anything that you say or do can be used against you.

Any data retrieved from your device can also be used against you. You have the right to an attorney.
If you cannot afford one, one will be provided to you.

Do you understand these rights as I have read them to you?

We recognize that this revised Miranda warning has no actual force of law.
It’s simply meant as a way to think about encryption, constitutional rights, and contemporary interactions with police.
Remember, you only get Mirandized during a “custodial situation”
Here’s what a “digital Miranda warning” might look likeChris Yarzab/Flickr

Back in 2014, the court unanimously found in Riley v.

 that law enforcement must get a warrant before searching mobile phones during an arrest. Prior to Riley, at least some law enforcement officials were searching some suspects’ phones on the grounds that data on the phones could be used to aid their investigations.
Writing for a rare unanimous court, Chief Justice John Roberts argued dismissively against the government, saying that searching a phone was not at all like searching a wallet. “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon,” he concluded.
Riley showed that the Supreme Court has started to think in fundamentally new ways about privacy in relation to the digital devices that are almost always with us.
So, then, we wondered, would most people even think to challenge law enforcement when asked to unlock their device, whether during an arrest, or otherwise?

In fact, just after the Riley decision in 2014, a California Highway Patrol officer asked a woman to unlock her phone and hand it over during a traffic stop on suspicion of a DUI.
She complied.
It’s worth noting that as this was just a traffic stop, which is not generally considered to be a “custodial situation.” She did not need to be given a Miranda warning, either. Recall, Riley only dealt with a very specific situation: requiring a warrant incident to arrest.
The officer, Sean Harrington, found semi-nude pictures on the woman’s phone, which he then sent on to himself and shared with his buddies. (Harrington has since left the CHP, was prosecuted, took a plea deal, and is currently on probation.)
We guess that most people wouldn’t know about Riley, nor many of their other constitutional rights and how they apply in the modern world. Most people probably would follow whatever instructions, whether legal or not, given to them by an (ideally well-intentioned) officer of the law. (To be clear, we’ve yet to find an example where evidence was tossed in a case because an officer blatantly ignored Riley.)
When in doubt, ask for a lawyer and stay quiet

One of the key elements of understanding post-Miranda criminal procedure is that suspects don’t always have to be read their rights. Miranda only kicks in during what’s called a “custodial” situation, typically an arrest. (A 2009 article from PoliceOne.com describes “how to talk to suspects without Mirandizing.”)
When we asked around, Orin Kerr, a law professor at George Washington University, was quick to point out that there is a post-Miranda Supreme Court decision that involves what’s known as a “consent search.” In this 1973 decision, in a case known as Schneckloth v.

, the court found that a search is still allowed where consent is granted, even if the defendant is not expressly informed of his or her constitutional rights to refuse such a search.
In that case, Sunnyvale, California, Police Officer James Rand pulled over a car containing six people at 2:40am on a traffic stop for a broken tail light. When Office Rand asked the men to produce identification, only one, Joe Alcala, complied. Rand asked him if he could search the car, and Alcala agreed.

The search yielded stolen checks in the car. One of the passengers, Robert Bustamante, was eventually charged with possessing stolen checks.

The men challenged the search, and eventually, the Supreme Court found that the men were under no legal obligation to consent to a search. Moreover, the officer did not have to inform the men of their rights until one of them had been arrested.
Similarly, the woman who had the unfortunate interaction with the CHP officer in 2014 was under no obligation to unlock her phone, much less hand it over. Harrington didn’t have to read “Jane Doe” a Miranda warning—she was not under arrest.

As many cops know, criminals often will still talk even after they are Mirandized.
“The nice thing about Miranda is that it doesn’t require [police] to say too much,” Mark Jaffe, a criminal defense lawyer who specializes in computer crimes, told Ars. (Jaffe has represented defendants in cases that Ars has written about, including Matthew Keys and Deric Lostutter.) Jaffe explained that many law enforcement officers want a clear, bright line like Miranda, as to what is acceptable in certain situations.
But what about a scenario where law enforcement simply comes knocking at your door, asking that you help out? What rights do you have in such a non-custodial setting?

In February 2016, a woman in Glendale, California, was ordered to depress her fingerprint on a seized iPhone. Months later, in May 2016, federal law enforcement officials, also in Los Angeles County, were successful in getting judicial approval for two highly unusual searches of a seized smartphone at two different Southern California homes, one in Lancaster and one in West Covina, about 90 miles away.

The signed warrants allowed the authorities to force a resident reasonably believed to be a user to press their fingerprints on the phone to see if it would unlock. (Under iOS and Android, fingerprints as passcodes only work for 48 hours, after that timeframe, the regular passcode is required.

Court records show that the warrants were presumably executed within that 48-hour window.)
While there is no evidence that any of the residents attempted to challenge this order in court, it seems that someone could have. Presumably a person could have refused, possibly risking contempt of court and even the use of physical force to get a fingerprint onto the phone.
“You shouldn’t resist a police order, you should lodge your dissent, and you should ask and clarify that they’re asking you to do it,” Alex Abdo, an attorney with the American Civil Liberties Union, told Ars. “But you should comply—as a lawyer that’s the advice you’re going to have to give.”
Kerr didn’t think that a Lancaster-style situation would be considered custodial, and so wouldn’t trigger Miranda.
In other words, given the court’s holding in Schneckloth, our revised Miranda warning wouldn’t matter anyway.
This seems reasonable—there are plenty of situations where many people might want to be helpful to police. Plus, we generally want police to be able to solve crimes.

But not everyone may be so forthcoming or trusting of police.
Jaffe even proposed a short verbal warning that law enforcement could use as a Miranda-style warning in non-custodial situations: “I would like to search your car/house/phone. Please understand I don’t have a warrant to do so.”

Supreme Court has yet to rule

Being enticed or even compelled to hand over passcodes or fingerprint-enabled passcodes gets to the heart of the “going dark” problem. Law enforcement says that modern “unbreakable” encryption frustrates lawful investigations aimed at tech-savvy criminals who refuse to unlock their data.
As Ars has reported before, under the Fifth Amendment, defendants cannot generally be compelled to provide self-incriminating testimony (“what you know”).
In 2012, the 11th US Circuit Court of Appeals ruled in favor of a defendant (“John Doe”) accused of possessing child pornography. “We conclude that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files,” the court wrote.
The government did not pursue the issue further.

For now the 11th Circuit ruling, which covers Alabama, Florida and Georgia, remains the highest court to have directly addressed the subject.
But that doesn’t mean that other judges see it this way, and some have ordered forced decryption.
Shortly after the 11th Circuit ruling, a judge ordered a Colorado woman to decrypt her laptop computer so prosecutors could use the files against her in a criminal case.

The case, in which the judge also found that the woman’s Fifth Amendment privilege against compelled self-incrimination was not violated, ultimately settled itself without her having to cough up the password and decrypt her computer for the authorities.
More recently, a former Philadelphia police sergeant, referred to in court documents as yet another John Doe, still remains in custody for refusing an April 2016 court order to decrypt hard drives that authorities believe contain child porn.

That case is currently pending before the 3rd US Circuit Court of Appeals, and a decision could come at any time.
In court filings, Doe’s lawyers largely relied on the 11th Circuit’s decision.
But, giving a fingerprint (“what you are”) for the purposes of identification or matching to an unknown fingerprint found at a crime scene has been allowed.
It wasn’t until relatively recently, after all, that fingerprints could be used to unlock a smartphone.

The crux of the legal theory here is that a compelled fingerprint isn’t testimonial, it’s simply a compelled production—like being forced to hand over a key to a safe.

In the Lancaster court filings, nearly all of the cases that the government cites predate the implementation of fingerprint readers, except for a 2014 state case from Virginia.

As Ars reported at the time, a Virginia Circuit Court judge ruled that a person does not need to provide a passcode to unlock their phone for the police.

The court also ruled that demanding a suspect provide a fingerprint to unlock a phone would be constitutional. However, the Virginia state case, while interesting, has little legal relevance to ongoing federal cases across the country.
“I’m not sure that I would ever provide my passcode if it would incriminate myself,” Brian Owsley, a law professor at the University of North Texas and a former federal magistrate judge, told Ars. “What’s the max that you’re going to face for refusing to obey a court order? If you’re facing life sentence without parole you’re better off being obstinate—it’s not the job of the accused ever to make the job easier for the prosecution.”
What is custodial, anyway?
Here’s what a “digital Miranda warning” might look like
Marc Falardeau
Situations where law enforcement demands passwords in what they believe are noncustodial situations are surely set to become standard practice, if they haven’t already. On a cold February morning earlier this year, no less than 10 armed officers from various law enforcement agencies, all wearing body armor, showed up to execute a search warrant on Justin Ashmore’s two-bedroom apartment in Arkansas.
According to Ashmore’s lawyer, Carrie Jernigan, her client answered the door in his underwear. He was held to the side of the room as the search began.

Ashmore was then led upstairs to his bedroom to stay out of earshot of his eight-year-old son, who was also in the apartment and questioned.
One of the federal agents began peppering Ashmore with questions and statements like: “Tell me why we are here today?” and “Don’t play stupid, you know why we are here.” Ashmore initially thought perhaps it was because he had a small amount of marijuana in his freezer.

The questioning agent told him he didn’t care about the weed.
As the interrogation went on, the agent eventually came out with it: “Tell me about the child porn movies you have been downloading.” According to the government, this was roughly when Ashmore confessed.
As Jernigan wrote:

At no time upstairs was Defendant Ashmore ever advised of his Miranda warnings or ever told he was free to leave.
In fact, he was denied his ability to leave.

Defendant Ashmore was also told he had to give the agents all passwords to all his electronic devices or it may be a very long time before he sees his own son again, to which he complied and gave the agents the information.

In their own filings, prosecutors dispute many parts of Jernigan’s account. “When interviewing Defendant, Special Agent Cranor and TFO Heffner did not use strong arm tactics and deceptive stratagems during questioning,” they wrote, adding: “The agents advised Defendant that they were there to serve a search warrant regarding child pornography downloads at his residence and did not ask him to guess as to why they were there.”
The government argued that this scenario was not custodial, and so Ashmore did not have to be read his rights.
According to the US District Judge PK Holmes’ December 2016 13-page opinion, it wasn’t until after Ashmore confessed to having the marijuana that he was Mirandized, at which point he allegedly confessed a second time to having downloaded child porn.
Judge Holmes further explained that because the defendant had not been adequately given a Miranda warning before he gave up the password to his cellphone and computer, that his two alleged confessions and the two passwords to his devices should be suppressed.
“The Government’s position is effectively that because officers never Mirandized Ashmore for his alleged confession related to child pornography, they could not have circumvented Miranda on purpose,” Judge Holmes continued. “Having listened to their testimony and observed their demeanor on this point, the Court does not believe the officers’ testimony and finds that they deliberately avoided giving Ashmore a Miranda warning.”
But, in this case, Judge Holmes concluded, the data found on those devices would be allowed to be presented as evidence during trial as the warrants were valid. Plus, police would have been able to access them anyway as the computer hard drive was unencrypted and Ashmore’s Samsung Android’s passcode could have been circumvented easily.
In legal terms, this is known as the “independent source doctrine [which] is an exception to the exclusionary rule.”
For now, Ashmore is set to go to trial January 17, 2017 in Fort Smith, Arkansas.
“Agencies are given tools to use to investigate crimes and they should entirely be allowed to use those tools,” Erik Rasmussen, a lawyer and former Secret Service special agent who focused on computer crimes, told Ars. “It changes all the time, because the adversaries change all the time.”

Leave a Reply