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William Montanez is used to being stopped by police in Tampa, Florida, for minor traffic and marijuana offenses; it happened more than a dozen times. When they arrested him last June, he did not try to hide his pot, saying to the officers: "Yes, I smoke, there is a seal in the center console, you go m & # To stop for that? "
They arrested him, not only for marijuana, but also for two small bottles containing THC oil – a crime – and for having a gun while perpetrating this crime (they found a handgun in the glove box).
Then things went bad.
While confiscating his two iPhones, a text message appeared on the locked screen of one of them: "OMG, did they find it?" Montanez suspected the police to try to look for evidence of illegal activities. He also did not want them to see more personal things, including intimate photos of his girlfriend. So he refused and was incarcerated for drug and firearms charges.
Five days later, when Montanez was released on bail, a representative from the Hillsborough County Sheriff's Office found him, handed him the warrants and asked for the phone codes. Once again, Montanez refused. Prosecutors addressed a judge, who ordered that he be re-imprisoned for contempt of court.
"I had the impression that they were raping me. They can not do that, "said 25-year-old Montanez recently. "F — all of you, I did not do anything wrong, they wanted to pick up the phone for what?"
He paid a high price, spending 44 days behind bars before the THC and the gun charges were dropped, the contempt order was dismissed and he pleaded guilty to one charge of pottery crime. And yet, he regrets nothing, because he now sees his challenge as a stand against the violation of his rights.
"The world should know that what they are doing here is crazy," said Montanez. The police never put his phones.
Although few people would choose prison, Montanez's decision reflects growing resistance to the power of law enforcement to scrutinize the digital lives of Americans. The main portals of this activity are cell phones, protected by encryption prying eyes, the only way to enter is the pass codes.
While police are now systematically seeking access to people's cell phones, privacy advocates are seeing a dangerous erosion of Americans' rights as courts strive to keep up.
"It's getting harder and harder to get away from the police who use technology that did not exist before," said Riana Pfefferkorn, assistant director of surveillance and cyber security at Stanford Law's Center for Internet and Society. School. "And now we are about to try to go back and stem the tide."
The courts have determined that the police needed a warrant to search a cell phone, but the question of whether the police can force someone to share an authentication code is far from the truth. to be resolved, without law in force and without a mosaic of divergent judicial decisions. Last month, the Supreme Court of Indiana heard arguments on the issue. The Supreme Courts of Pennsylvania and New Jersey consider similar cases.
As this legal battle progresses, the police continue to search for new ways to encroach on mobile phones if the owners do not cooperate – or seek help from technology companies that can do it for them. . This has put them at odds with cell phone manufacturers, who are constantly updating their products to make them more difficult for hackers or anyone else to access.
But hacking techniques are flawed and expensive, and not all law enforcement agencies have them. This is why the authorities say that convincing suspects to unlock their cell phones is essential to police work. Making tactics more difficult, they say, would incline justice for criminals.
"This would have an extremely deterrent effect on our ability to conduct a thorough investigation and to engage in many other cases, including violent offenses," said Hillar Moore, attorney in East Baton Rouge, Louisiana, who obtained the # 39; FBI help to pierce a cell phone. belonging to a suspect in a hazing ritual of the murderous fraternity of Louisiana State University. "That would essentially shut the door."
Code conflicts
In the part of Florida where Montanez lives, the authorities are guided by a case involving a picture under the skirt.
In July 2014, a young mother doing her shopping at a Target store in Sarasota noticed that a man was photographing her with her phone while he was squatting on the floor. She confronted him. He ran away. Two days later, police arrested Aaron Stahl and charged him with video voyeurism.
The authorities obtained a search warrant for Stahl's iPhone, but he would not have given them the authentication code, citing the right of his Fifth Amendment not to incriminate himself. A trial judge ruled in his favor, but a state appeal court overturned this decision in December 2016, stating that Stahl had to provide the code. Facing the possibility of being sentenced to trial and sentenced to imprisonment, Stahl has agreed to plead no challenge in exchange for probation.
Although Stahl ultimately failed to provide the access code, prosecutors still rely on the precedent set by the appeal decision to compel others to hand in their code of custody. Access under the threat of a prison term.
"Until then, you could be a pedophile or pedophile and bear the fruits of your crime in front of law enforcement officials, prosecutors and judges and taunt the fact that they could not get the access code, "said Cynthia Meiners. , who sued Stahl at the prosecutor's office of the 12th Judicial Circuit. "You could say," I am a pedophotographer and that is on my phone, but I do not give you my authentication code because I would incriminate myself. "
But this decision is only valid in a few Florida counties. Elsewhere in the country, skirmishes remain unresolved.
In Indiana, police officers are trying to force a woman to give her access code while she is conducting an investigation for harassment, saying it does not allow them to obtain essential evidence. The woman's lawyer said the authorities did not specify the evidence collected over the phone, which raised concerns about an unlimited search.
His appeals were heard by the state Supreme Court, whose ruling could influence similar cases across the country. Attorneys General of eight other states have filed a brief in support of the police, warning against a decision that "radically alters the balance of power between investigators and criminals".
The stakes are similar in New Jersey, where a sheriff's deputy accused of informing drug traffickers of police activities refused to hand over the authentication codes to his iPhones. The Supreme Court of the State decided in May to hear the case.
These conflicts are not limited to the use of security codes. The police also tried to force people to open their phones through biometrics, such as thumb printing or facial recognition. Legal experts consider that the Fifth Amendment's argument against self-incrimination is more exaggerated in these cases. The law has generally been interpreted as protecting the data that a person possesses – including the content of his mind, such as authentication codes – but not necessarily their physical traits, such as thumbprints. Some judges, however, refused to sign warrants for permission to force someone to unlock his phone with the help of his face or finger.
Forced deciphering rules are more lenient at the US border, where federal agents have vastly invested the power to search the phones of people entering the country and have spent hundreds of thousands of dollars on third-party hacking tools.
"Depending on where you are in the country, there is a different jurisprudence on what the police can do," said Andrew Crocker, a lawyer at the Electronic Frontier Foundation, a non-profit organization civil liberties.
In some states, there is no authoritative court decision, which leaves the law enforcement authorities to decide for themselves. Virginia falls into this category. The Alexandria city prosecutor, Bryan Porter, told the local police that it was acceptable to try to force a person under the threat of a prison to open a mobile phone with his fingerprint or his face. But asking for a password seems to go too far, he said.
Criminals should not be able to get vaccinated after an investigation, Porter said. "But it sort of rubs me the wrong way to present a piece of paper to someone and say," Give us your code. "
"What they did to me was illegal"
In Tampa, Florida, where Montanez was arrested last year, judges still rely on the 2016 judgment against Stahl by the district's second appeals court. That's what prosecutors cited when they tried to force Montanez to give up his access codes.
However, Patrick Leduc, Montanez's lawyer, argued that, unlike the Stahl case, the police had no reason to search his phone because he had no connection with the offenses of which he was accused. The text message "OMG, did they find it?" – which turned out to be that of Montanez's mother, who owned the car and the pistol in the glove box – made no sense, said The Duke. He warned against a police "fishing expedition" during which authorities could look for any potentially incriminating items on his phone.
Waiting for contempt, Montanez resolved not to abandon his confidential codes. "What they did to me was illegal and I would not give them their things like that," he said.
"They told me that I had the key to my freedom," he added. "But I said to myself — F — that."
But experience shook him. "I'm not the hardest guy in the world, but I can protect myself. But it was crazy, he said. "Bad food, fight here and there, people are trying to take your food."
At the same time, the case of drugs and firearms against Montanez collapsed. The laboratory tests on the suspected THC oil gave negative results, canceling this criminal charge and the related arms load. This left the prosecutors with only minor pot charges. But he remained in jail for contempt of court as his lawyer and prosecutors negotiated a plea agreement.
In August 2018, after Montanez had spent more than five weeks in jail for refusing to provide the authentication code, a court of appeal dismissed the case for contempt for technical reasons. The court invited the prosecutors to try again, but the value of the authentication code had decreased. Instead, prosecutors allowed Montanez not to challenge the drug charges for misdemeanor and he was released.
When he was released, Montanez gained notoriety that made him feel that he was not welcome in his own neighborhood. He noticed that people were looking at him differently. He was banned from his favorite bar.
The police continue to shoot him, and he fears them now, he said. He finally left Tampa and lives in Pasco County, about an hour away.
"Yes, I took a stand against them," he said. "But I lost all this time. I have to worry about it, go to jail for no reason.
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