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In courts across the country, EFF has been arguing that the police cannot constitutionally require you to unlock your phone or give them your password, and today the Indiana Supreme Court issued a strong opinion agreeing with us. In the case, Seo v. State, the court found that the Fifth Amendment privilege against self-incrimination protected a woman against unlocking her phone because complying with the order was a form of testimony under the Fifth Amendment. Indiana joins Pennsylvania, which ruled strongly in favor of the Fifth Amendment privilege in a compelled decryption case last year. Meanwhile, state supreme courts in New Jersey and Oregon are also considering this issue.

In Seo, the defendant reported to law enforcement outside of Indianapolis that she had been the victim of a rape and allowed a detective to examine her iPhone for evidence. But the state never filed charges against Seos alleged rapist, identified as D.S. Instead, the detective suspected that Seo was harassing D.S. with spoofed calls and texts, and she was ultimately arrested and charged with felony stalking.The state not only sought a search warrant to go through Seos phone, but a court order to force her to unlock it.Seo refused, invoking her Fifth Amendment rights. The trial court held her in contempt, but an intermediate appeals court reversed.

In an amicus brief on behalf of EFF and ACLU and at oral argument in the Indiana Supreme Court, we explained that the compelled recollection and use of passwords to encrypted devices should be viewed as a modern form of testimonial communications, which are protected by the Fifth Amendment privilege. Although some courts have struggled with the concept of testimony in the context of compelled decryption, a 1957 U.S. Supreme Court case defines it as anything that requires a person to disclose the contents of his own mind. Its also clear that nonverbal acts can be testimonial, such as being forced to respond truthfully to police questioning with a nod or headshake, or toproduce a gunthat police believe was used in a crime. And in a 1990 case, the U.S. Supreme Court found that a motorist suspected of drunk driving couldnt be forced to tell police the date of his sixth birthday, even though officers clearly knew the answer and were simply trying to obtain evidence of his intoxication.

The Indiana Supreme Court agreed, writing that unlocking a phone communicates a breadth of factual information, since it allows the government to infer that the suspect knows the password to the device and thus possessed the files on the phone. This gives the State information it did not previously knowprecisely what the privilege against self-incrimination is designed to prevent.

In addition to the question of testimony, however, courts in compelled decryption cases have struggled with Fisher v. United States, a 1976 U.S. Supreme Court case that introduced the concept of a foregone conclusion. Fisher involved a subpoena for an individuals tax documents, where the government could demonstrate that it already knew all of the information it would otherwise learn from a response to the subpoena. In other words, it was a foregone conclusion that the specific documents the government sought existed, were authentic, and belonged to the individual. Although the Supreme Court has never again relied on this foregone conclusion rationale, the government has built it into a full-blowndoctrine.State and federal prosecutors have invoked it in nearly every forced decryption case to date. InSeo, the State argued that all thatcompelling the defendant to unlock her phone would reveal is that she knows her own passcode, which would be a foregone conclusion once it has proven that the phone belongs to her.

In our amicus brief, we argued that this would be a dangerous rule for the Indiana Supreme Court to adopt. If all the government has to do to get you to unlock your phone is to show you know the password, it would have immense leverage to do so in any case where it encounters encryption. The Fifth Amendment is intended to avoid putting people to a cruel trilemma: self-incriminate, lie about knowing the password, or risk being held in contempt for refusing to cooperate. Instead, its clear fromFisherand later Supreme Court cases that the foregone conclusion rationale is very narrow. The Court has applied it in Fisher, a case involving business records, and only where the testimonial communication at issue was the act of providing specified documents. The Court has made clear there is no foregone conclusion exception where a person is required to use the contents of their mind, even inresponding to a more open-ended document subpoena. So there should be no exception to the Fifth Amendment when the government compels disclosure or use of a passcode to unlock and decrypt a digital device.

In its opinion, the Indiana Supreme Court largely agreed. It rejected the states argument that it could invoke the foregone conclusion rationale if it could show that the defendant knew her password. Instead, it held that the state was fishing for incriminating evidence without any knowledge of what was on her phone, and that forcing her to unlock her phone under these circumstances would sound the death knell for a constitutional protection against compelled self-incrimination in the digital age.

Although that resolved the case, the court also included a lengthy discussion of why the foregone conclusion rationale should probably never apply to compelled decryption cases. It noted that smartphones contain far more private information than a personal diary or an individual tax return ever could, a fact that has led the U.S. Supreme Court to reject the application of pre-digital caselaw to government searches of phones. The Indiana court wrote that applying Fishers foregone conclusion rationale would mean expanding a decades-old and narrowly defined legal exception to dynamically developing technology that was in its infancy just a decade ago. Finally, the court noted that police have many tools to investigate users of encrypted devices without compromising users constitutional rights. In light of these tools, compelling a user to unlock a phone would tip the scales too far in the States favor, resulting in a seismic erosion of the Fifth Amendments privilege against self-incrimination.

Were gratified by the ruling, and were watching for courts in New Jersey, Oregon and elsewhere to continue the trend of protecting against compelled decryption.

Excerpt from:
Victory: Indiana Supreme Court Rules that Police Can't Force Smartphone User to Unlock Her Phone - EFF

In 2015, an armed shoplifter fleeing the police broke into the Lech familys home in Greenwood Village, Colorado. The shoplifter, who chose the Lechs house at random, refused to come out and opened fire on the cops outside. In response, local police used explosives, high-caliber ammunition and a battering ram mounted on a tank-like vehicle to force his apprehension.

The Lechs home was essentially destroyed by the police response, which raises a critical legal question: Who pays for damage inflicted on private property as a result of a law enforcement action? Is it the responsibility of the police who intentionally caused the damage while playing with military equipment, or the innocent victim whose home is left in shambles?

This week, the U.S. Supreme Court is considering that question in Lech v. City of Greenwood Village, a case brought by the Institute for Justice, in which PLF filed an amicus brief. How the court rules will have significant legal implications, both in terms of clarifying property rights law and restoring a sense of accountability to law enforcement agencies that have grown increasingly aggressive in their tactics.

The damage to the Lechs property was estimated at $450,000. Yet the Greenwood Village Police Department offered the family a paltry $5,000 to help with temporary living expenses. The family sued, arguing they were entitled to Just Compensation under the Fifth Amendment for the intentional destruction of their house. The Tenth Circuit, however, held no compensation was due because the home was destroyed pursuant to the police power rather than the power of eminent domain. That decision was wrong.

To be sure, the Just Compensation Clause is more commonly understood to apply in the context of eminent domain, or regulatory takings, where the government takes private property for public use. This situationin which police destroyed the property while performing their dutiesis different. But in both circumstances, the property owner is left with private property he can no longer use.

Why didnt property insurance cover the Lechs loss? Because homeowners policies typically carry an exclusion for damages caused pursuant to government orders, which caused the destruction to the Lech home. Or perhaps the criminal should be held liable, but of course, he did not decide to drive the tank into the Lech home the police made the strategic decision to deploy military-style tactics and weapons against a residential home.

The use of such tactics and equipment has increased in recent years, as a result of federal grant programs that have placed powerful military-grade equipment into the hands of local police departments. In one recent three year period alone, the Pentagon sent $727 million of gear to local and state law enforcement authorities, including UH-60 Blackhawk and UH-1 Huey helicopters, M-16 assault rifles, and grenade launchers.

In response, those departments have likewise changed their tactics, as scholars like Radley Balko have explained. That is, once they have the military-grade equipment, they put it to work in ordinary law enforcement activity, even when less aggressive methods may be just as, or more, effective. Law enforcement agencies increasingly rely on so-called dynamic-entry, using SWAT teams, battering rams, assault rifles, armored personnel carriers and flash-bang grenades, ostensibly to protect the public.

It appears then, right or wrong, the deployment of military-grade equipment and tactics to enforce local laws is here to stay, as is the property and personal damage they cause. Thus, the Supreme Court needs to educate law enforcement about the Fifth Amendment. Innocent victims of the militarized approach to law enforcement will continue to suffer losses unless this Court confirms that intentional government action that occupies and destroys private property for a public use triggers the Just Compensation Clause.

And keep in mind that the Lechs are, in fact, innocent victims in this casethey did nothing wrong. However, even if they had been suspected of criminal offenses, the same protections for their property and rights would have applied, as even criminal suspects are presumed innocent, according to the Constitution. Theres simply no justification for the level of destruction that law enforcement routinely unleashes against private property owners, which is why the Supreme Court needs to clarify accountability in these cases.

There is no police power exception to the Fifth Amendment. The justices should grant the Lech case for review and recognize that the Fifth Amendment requires law enforcement to pay full compensation for all losses incurred when it destroys property while exercising its police powers.

The question here is not whether this government conduct is legitimate; the question is who should pay for the damages. And the Fifth Amendment answers that question: the government should, because the police, like the rest of us, are not above the law.

Daniel Woislaw is an attorney at Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitutions guarantee of individual liberty.

The rest is here:
Supreme Court must remind law enforcement that not even the police are above the law - Pacific Legal Foundation (PLF)

The following court proceedings occurred Monday, June, 22, in Newburyport District Court. People arraigned are considered innocent until proven guilty in a court of law:

Connor R. Lewis, 27, address unknown, Amesbury, was arraigned on five counts of violating an abuse prevention order. Lewis was ordered held on $1,000 cash bail and ordered to return to court July 24. Should Lewis post bail, he must stay at least 50 yards away and have no contact with his alleged victim, must not possess firearms and must abide by all restraining orders. Lewis turned himself in to authorities after Amesbury police issued an arrest warrant.

Kasimer J. Alexander, 35, 12 Baker Road, Salisbury, and Thomas Dastous, 37, 125 Rabbit Road, Salisbury, saw assault and battery charges dismissed after they exercised their Fifth Amendment rights not to incriminate themselves. Both men were before Judge Peter Doyle as part of a bench trial. They were arraigned Dec. 24, after being charged by Salisbury police.

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COURT LOG: June 25, 2020 - The Daily News of Newburyport

The U.S. Supreme Court on Thursday dealt a severe blow to the rights of immigrants and refugees in a that determined the government can fast-track deportation of certain asylum-seekers without allowing them to appeal before a federal judge.

In the decision stylized as Department of Homeland Security vs. Thuraissigiam, the courts conservative majority collectively denied habeas corpus and due process relief to a Sri Lankan national who feared persecution in his home country. Liberal justices Ruth Bader Ginsburg and Stephen Breyerconcurred in the judgment.

The majority opinion, penned by arch-conservative Justice Samuel Alito, represents a victory for the Trump administrations efforts to expedite removal of asylum seekers who fail their initial asylum screenings.

The specific statute at issue is the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, legislation signed by Bill Clinton which established the framework of the countrys modern and exclusionary immigration and deportation regime.

Under the relevant language of the IIRIRA, an asylum applicant can avoid expedited removal if they have a credible fear of persecution. Here, Vijayakumar Thuraissigiam entered the country via the U.S.-Mexico borderbypassing official entry points and without immigration documentation. He was quickly apprehended and then processed for expedited removal by the Border Patrol.

What happened after that is hotly disputed.

The federal government claims, and the seven justices in the majority effectively accept, that Thuraissigiam affirmed that he did not fear persecution based on his race, political opinions, or other protected characteristics.

Thuraissigiam claims, on the other hand, that officials violated governing asylum regulations and deprived him of due process by conducting an inadequate interview and providing incomplete translation services, which the dissent says resulted in a threshold legal claim alleging procedural defects that violate, or at least call into question the governments adherence to asylum law.

Border authorities declined his asylum claim. An immigration judge later did the same. Thuraissigiam then filed a habeas petitionarguing that IIRIRAs language limiting habeas claims violates the Suspension Clausewhich also included a constitutional Due Process claim which asserted that immigration authorities had deprived him of a meaningful opportunity to establish his claims and requested another opportunity to argue his asylum claims. In his federal petition, Thuraissigiam pleaded that he feared persecution based on his ethnicity and political beliefs in Sri Lankafacts which would typically move an asylum claim past the credible fear stage.

Alitos majority opinion dismissed both claimsruling that habeas corpus petitions have no bearing on asylum claims and that undocumented immigrants caught entering the country are not entitled to Fifth Amendment Due Process rights.

Habeas has traditionally been a means to secure release from unlawful detention, but respondent invokes the writ to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country, the decision notesconcluding that this approach fails because it would extend the writ of habeas corpus far beyond its scope when the Constitution was drafted and ratified.'

The conservative-liberal consensus here will have far-reaching effects, for sure, but the decision also substantially upends precedent viz. the determination that immigrants caught attempting to enter the country without documentation are entitled to Bill of Rights protections. As the dissent notes, this is a drastic departure.

Per the decision:

Respondents due process argument fares no better. While aliens who have established connections in this country have due process rights in deportation proceedings, the Court long ago held that Congress is entitled to set the conditions for an aliens lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause. Respondent attempted to enter the country illegally and was apprehended just 25 yards from the border. He therefore has no entitlement to procedural rights other than those afforded by statute.

In short, under our precedents, neither the Suspension Clause nor the Due Process Clause of the Fifth Amendment requires any further review of respondents claims, and IIRIRAs limitations on habeas review are constitutional as applied, Alito continues.

The conservative majority acknowledges the impact of their ruling will have significant consequences for the immigration system in a section outlining the efficacy of the countrys immigration system and the pertinent sections of federal law that under-gird that system.

Taking the government at its word, Alito and the mostly conservative justices who agree with the Trump administrations long-argued public and legally briefed position that the majority [of asylum claims] have proved to be meritless.

Alito argued this point in a footnote:

[A]n influx of meritless claims can delay the adjudication of meritorious ones; strain detention capacity and degrade detention conditions; cause the release of many inadmissible aliens into States and localities that must shoulder the resulting costs; divert Department resources from protecting the border; and aggravate the humanitarian crisis created by human smugglers.

Tidily summing up the governments position, the majority described their overarching logic in deciding the case: If courts must review credible-fear claims that in the eyes of immigration officials and an immigration judge do not meet the low bar for such claims, expedited removal would augment the burdens on that system. Once a fear is asserted, the process would no longer be expedited.

Justice Sonia Sotomayor, joined by Justice Elena Kagan, wrote a lengthy and vehement dissentharshly criticizing both the majority opinion and her two liberal peers for concurring in the judgment.

Todays decision handcuffs the Judiciarys ability to perform its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers, the dissent argues. It will leave significant exercises of executive discretion unchecked in the very circumstance where the writs protections have been strongest. And it increases the risk of erroneous immigration decisions that contravene governing statutes and treaties.

[image via MANDEL NGAN/AFP via Getty Images]

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RBG and Breyer Controversially Concur in Judgment Dealing Severe Blow to Rights of Immigrants - Law & Crime

'The Room Where it Happened,' a book by John Bolton, at the White House in Washington, June 18, 2020. The book describes Boltons 17 turbulent months at President Trumps side through a multitude of crises and foreign policy challenges.

Doug Mills/The New York Times News Service

Robert Rotberg is the founding director of the Harvard Kennedy Schools Program on Intrastate Conflict, a former senior fellow at CIGI and president emeritus of the World Peace Foundation.

President Donald Trump should have been been found guilty at his impeachment trial. The U.S. House of Representatives should have expanded its indictment charge well beyond Ukrainian corruption, high crimes and misdemeanours to include asking President Xi Jinping of China to help him get reelected (and approving of Mr. Xis Uyghur concentration camps in Xinjiang region), running down NATO, pulling out of Syria in order to cut a deal with President Recep Tayyip Erdogan of Turkey (and betraying Kurdish allies), and generally running amok with foreign policy errors. Those are among the many critiques of the Trump presidency by John Bolton, his diehard conservative national security advisor, in a book being distributed this week.

Mr. Boltons charges are barbed. But even if voters are numbed by the sheer number of accusations, compounded by 19,000 already uttered presidential falsehoods counted by a Washington Post tally, Mr. Boltons indictment will remind a weary electorate not to forget. Truth and authenticity are the bedrock of leadership. Americans should expect no less of their presidents. Moreover, even though Congress has no appetite for another impeachment, nailing Mr. Trumps offences to the proverbial church door tells him, and the American people, that this is a president truly unfit for office an echo as well of the Twenty-fifth Amendment to the U.S. Constitution, which allows cabinet and Congress to end a presidency because of incapacity.

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The cascade of impeachable offences includes:

Dividing rather than uniting these United States and their disparate citizens. Putting narcissistic and electoral needs ahead of serving the nation.

Creating a series of thems rather than one us. Presidents should be drawing people into an us rather than creating an us versus them. New Zealands Prime Minister Jacinda Ardern did so successfully after a mosque massacre and now keeps her country largely free of coronavirus deaths. South Africas President Nelson Mandela dined with his enemies and brought all of South Africa together at a time when Black and white were dangerously unreconciled.

Demeaning the presidency and the very essence of the nation. Emerging from a White House bunker to attack peaceful protestors in order to accomplish a photo-op is but one example. Brendan Buck, a Republican operative, called those actions singularly immoral. Mr. Buck said that the President used force against citizens not to protect property, but to soothe his own insecurities.

Racist remarks threatening the very lives of Black Americans protesting. Conniving, too, with the stain of the Confederate memorabilia and names on military bases.

Falsely saying that presidents have authority to do whatever they want. I alone can fix it.

Facilitating the deaths of coronavirus victims. By sending wrong signals, first of reassurance and then of false remedies, and finally by encouraging the opening up for business prematurely and arrogantly, he caused the unnecessary deaths of thousands of Americans.

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Mr. Trumps missteps in foreign policy are also piling up:

Massively undermining the carefully constructed world order for which all previous American presidents and secretaries of state have fought valiantly and vigilantly since the Second World War.

Pulling out of the Paris climate accord, the Iranian nuclear deal and trashing the World Health Organization, thereby endangering the health and safety of the world.

Losing the trust of the world in the fundamental moral decency of U.S. policy.

Making the word of the United States unreliable in world affairs.

Forfeiting the U.S. role as a global setter and articulator of moral and legal guidelines and giving those roles (imagine!) to China and Russia.

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Putting Russias interests in security and human rights matters ahead of our own. Cosseting President Vladimir Putin, over and over. Condoning the invasion of Crimea.

Picking unnecessary fights with China, causing pain and trouble for Canadians and other Americans.

Calling African countries unspeakable names and being derogatory about their peoples.

Separating children from parents at the Mexican border.

Illegally denying the possibility of asylum to persons fleeing from Central America and beyond.

Embodying profound ignorance (refusing to read briefing books) in ways that endanger the nation and the world. And getting his information off a TV screen or from Twitter.

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Being a bully (and a coward).

Making the United States the laughingstock of the world no trivial crime.

This is hardly an exhaustive list. Nor is there space for more than bullet points. Realistically, there will be no second impeachment, no matter how deserved. Nor will his cabinet invoke the Twenty-fifth Amendment and declare him unfit for office. But the mental exercise of impeaching him again may contribute to Americas reckoning with itself in a desperate time when authentic and principled leadership matters more than ever. It is past time to call out the creator of Americas discontent.

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Excerpt from:
Boltons revelations show that Trump deserves to be impeached a second time - The Globe and Mail