Fake News Comes to Academia
551 Comments By Jillian Kay Melchior Oct. 2, 2018 6:55 p.m. ET Illustration: Chad Crowe The existence of a monthly journal focused on “feminist geography” is a sign of something gone awry in academia. The journal in question—Gender, Place & Culture—published a paper online in May whose author claimed to have spent a year observing canine sexual misconduct in Portland, Ore., parks.
The author admits that “my own anthropocentric frame” makes it difficult to judge animal consent. Still, the paper claims dog parks are “petri dishes for canine ‘rape culture’ ” and issues “a call for awareness into the different ways dogs are treated on the basis of their gender and queering behaviors, and the chronic and perennial rape emergency dog parks pose to female dogs.”
The paper was ridiculous enough to pique my interest—and rouse my skepticism, which grew in July with a report in Campus Reform by Toni Airaksinen. Author Helen Wilson had claimed to have a doctorate in feminist studies, but “none of the institutions that offers such a degree could confirm that she had graduated from their program,” Ms. Airaksinen wrote. In August Gender, Place & Culture issued an “expression of concern” admitting it couldn’t verify Ms. Wilson’s identity, though it kept the paper on its website.
All of this prompted me to ask my own questions. My email to “Helen Wilson” was answered by James Lindsay, a math doctorate and one of the real co-authors of the dog-park study. Gender, Place & Culture had been duped, he admitted. So had half a dozen other prominent journals that accepted fake papers by Mr. Lindsay and his collaborators—Peter Boghossian, an assistant professor of philosophy at Portland State University, and Helen Pluckrose, a London-based scholar of English literature and history and editor of AreoMagazine.com.
The three academics call themselves “left-leaning liberals.” Yet they’re dismayed by what they describe as a “grievance studies” takeover of academia, especially its encroachment into the sciences. “I think that certain aspects of knowledge production in the United States have been corrupted,” Mr. Boghossian says. Anyone who questions research on identity, privilege and oppression risks accusations of bigotry.
Beginning in August 2017, the trio wrote 20 hoax papers, submitting them to peer-reviewed journals under a variety of pseudonyms, as well as the name of their friend Richard Baldwin, a professor emeritus at Florida’s Gulf Coast State College. Mr. Baldwin confirms he gave them permission use his name. Journals accepted seven hoax papers. Four have been published.
This isn’t the first time scholars have used a hoax paper to make a point. In 1996 Duke University Press’s journal Social Text published a hoax submission by Alan Sokal, a mathematical physicist at New York University. Mr. Sokal, who faced no punishment for the hoax, told me he was “not oblivious to the ethical issues involved in my rather unorthodox experiment,” adding that “professional communities operate largely on trust; deception undercuts that trust.”
But he also said he was criticizing an academic subculture “that typically ignores (or disdains) reasoned criticism from the outside.” He concluded: “How can one show that the emperor has no clothes? Satire is by far the best weapon; and the blow that can’t be brushed off is the one that’s self-inflicted.” Messrs. Lindsay and Boghossian were already known for a hoax paper titled “The Conceptual Penis as a Social Construct,” which they published in the journal Cogent Social Sciences last year under the names Jamie Lindsay and Peter Boyle.
Such hoaxes are unethical, and The Wall Street Journal doesn’t condone them. The Journal expects op-ed contributors to be truthful about their identities and research, and academic journals also rely on the honesty of their authors.
But the trio defended their actions, saying they viewed the deception not as a prank but as a “hoax of exposure,” or a way to do immersive research that couldn’t be conducted any other way. “We understood ourselves to be going in to study it as it is, to try to participate in it,” Ms. Pluckrose says. “The name for this is ethnography. We’re looking at a particular culture.”
Each paper “combined an effort to better understand the field itself with an attempt to get absurdities and morally fashionable political ideas published as legitimate academic research,” Mr. Lindsay wrote in a project summary. Their elaborate submissions cited and quoted dozens of real papers and studies to bolster the hoax arguments.
One of the trio’s hoax papers, published in April by the journal Fat Studies, claims bodybuilding is “fat-exclusionary” and proposes “a new classification . . . termed fat bodybuilding, as a fat-inclusive politicized performance.” Editor Esther Rothblum said the paper had gone through peer review, and the author signed a copyright form verifying authorship of the article. “This author put a lot of work into this topic,” she said. “It is an interesting topic, looking at weight and bodybuilding. So I am surprised that, of all things, they’d write this as a hoax. As you can imagine, this is a very serious charge.” She plans to remove the paper from the Fat Studies website.
A hoax paper for the Journal of Poetry Therapy describes monthly feminist spirituality meetings, complete with a “womb room,” and discusses six poems, which Mr. Lindsay generated by algorithm and lightly edited. Founding editor Nicholas Mazza said the article went through blind peer review and revisions before its acceptance in July, but he regrets not doing more to verify the author’s identity. He added that it took years to build credibility and get the Journal of Poetry Therapy listed in major scholarly databases. “You work so hard, and you get something like this,” he said. Still, “I can see how editors like me and journals can be duped.”
Affilia, a peer-reviewed journal of women and social work, formally accepted the trio’s hoax paper, “Our Struggle Is My Struggle: Solidarity Feminism as an Intersectional Reply to Neoliberal and Choice Feminism.” The second portion of the paper is a rewrite of a chapter from “Mein Kampf.” Affilia’s editors declined to comment.
The trio say they’ve proved that higher ed’s fixation on identity politics enables “absurd and horrific” scholarship. Their submissions were outlandish—but no more so, they insist, than others written in earnest and published by these journals.
Gender, Place & Culture, for instance, published a 2017 paper that wasn’t a hoax analyzing the “feminist posthumanist politics” of what squirrels eat. This year Hypatia, a journal of feminist philosophy, published an analysis of a one-woman show featuring “the onstage cooking of hot chocolate and the presence of a dead rat.” The performance supposedly offers “a synthaesthetic portrait of poverty and its psychological fallout.”
The trio say the biases in favor of grievance-focused research was so strong that their hoax papers sailed through peer review, acceptance and publication despite obvious problems. The data for the dog-park study, Mr. Lindsay says, “was constructed to look outlandish on purpose. So asking us for the data would not have been out of sorts. It would have been appropriate, and we would have been exposed immediately.”
One hoax paper, submitted to Hypatia, proposed a teaching method centered on “experiential reparations.” It suggested that professors rate students’ levels of oppression based on race, gender, class and other identity categories. Students deemed “privileged” would be kept from commenting in class, interrupted when they did speak, and “invited” to “sit on the floor” or “to wear (light) chains around their shoulders, wrists or ankles for the duration of the course.” Students who complained would be told that this “educational tool” helps them confront “privileged fragility.”
Hypatia’s two unnamed peer reviewers did not object that the proposed teaching method was abusive. “I like this project very much,” one commented. One wondered how to make privileged students “feel genuinely uncomfortable in ways that are humbling and productive,” but not “so uncomfortable (shame) that they resist with renewed vigor.” Hypatia didn’t accept the paper but said it would consider a revised version. In July it formally accepted another hoax paper, “When the Joke Is on You: A Feminist Perspective on How Positionality Influences Satire”—an argument that humor, satire and hoaxes should only be used in service of social justice, not against it.
Ann Garry, an interim editor of Hypatia, said she was “deeply disappointed” to learn that the papers, which went through double anonymous peer review, may be hoaxes. “Referees put in a great deal of time and effort to write meaningful reviews, and the idea that individuals would submit fraudulent academic material violates many ethical and academic norms,” she said. “It is equally upsetting that the anonymous reviewer comments from that effort were shared with third parties, violating the confidentiality of the peer-review process.” Wiley, Hypatia’s publisher, is investigating in accordance with industrywide ethical guidelines, she said.
After I contacted Gender, Place & Culture about the dog-park hoax paper, I received a statement from Taylor & Francis Group, the journal’s publisher. Tracy Roberts, publishing director for the humanities and social sciences, said that after postpublishing checks raised questions about the author’s identity, the editors launched an investigation several weeks ago. “Helen Wilson” never responded to their queries. “We are now in the process of retracting this article from the scholarly record,” the editorial team said in a statement.
Mr. Boghossian doesn’t have tenure and expects the university will fire or otherwise punish him. Ms. Pluckrose predicts she’ll have a hard time getting accepted to a doctoral program. Mr. Lindsay said he expects to become “an academic pariah,” barred from professorships or publications.
Yet Mr. Lindsay says the project is worth it: “For us, the risk of letting biased research continue to influence education, media, policy and culture is far greater than anything that will happen to us for having done this.”
Ms. Melchior is an editorial page writer at the Journal.
All of Brett Kavanaugh’s Lies | GQ
Twitter An attempt to catalog the various lies told by the embattled Supreme Court nominee—including while under oath.
It is not that often that four of a judicial nominee’s high school and college classmates go on the record to question his honesty. But so it goes with Brett Kavanaugh, Donald Trump’s post-truth Supreme Court nominee.
Last Thursday, Kavanaugh testified to the Senate Judiciary Committee in a hearing, which was heavily rigged in his favor because Republicans limited senators to five minutes of questioning and disallowed any other witnesses, on Christine Blasey Ford’s allegations of sexual assault against him. As in previous interviews and testimony, his statements were riddled with misrepresentations, diversions, and outright lies, so much so that The New York Times posted a fact-check , Vox made a chart of every time Kavanaugh dodged a question , and Current Affairs ‘ Nathan Robinson dissected the testimony in an exhaustive 10,000-word refutation, ” How We Know Kavanaugh Is Lying .”
After the hearing, Kavanaugh’s Georgetown Prep classmate Sean Hagan posted on Facebook: “So angry. So disgusted. So sad. Integrity? Character? Honesty?” Yale classmate Chad Ludington, a professor at North Carolina State University, issued a statement saying that he was “deeply troubled” by Kavanaugh’s “blatant mischaracterization” and “cringed” while watching his testimony under oath. “I can unequivocally say that in denying the possibility that he ever blacked out from drinking, and in downplaying the degree and frequency of his drinking, Brett has not told the truth,” wrote Ludington.
Two more Yale classmates granted interviews to CNN. “There were a lot of texts flying around that night about how he was lying to the Senate Judiciary Committee,” Lynne Brookes, a college friend and registered Republican, told Chris Cuomo. Another college friend, Liz Swisher, a Democrat and professor of gynecologic oncology, was equally outraged by Kavanaugh’s dissembling performance. “To lie under oath. To blur…the difference between truth and lies, that’s just terrible,” said Swisher in a different interview with Cuomo. “It’s not about women versus men. It’s not about Democrats versus Republicans. It’s about the integrity of the Supreme Court.”
Not all Republicans were to be troubled by Kavanaugh’s disregard for the whole truth and nothing but the truth, with National Review editor Rich Lowry making the case to NPR that his lack of frankness was justified. Those who thought that the FBI investigation initiated by Senator Jeff Flake (R-Ariz.)—who appeared on 60 Minutes with Senator Chris Coons (D-Del.), saying that Kavanaugh’s nomination should be over if he lied to the committee—would lead to a more honest interrogation of the facts were met with the same kind of partisan stonewalling. “I thought it was going to be an investigation,” a Yale classmate attempting to corroborate Debbie Ramirez’s allegation of sexual misconduct told The New Yorker . “But instead it seems it’s just an alibi for Republicans to vote for Kavanaugh.”
The thing is that Kavanaugh doesn’t just lie about his drinking or circumstances that may implicate him in a crime, which, while perhaps an understandable human reaction, is baseline disqualifying for serving on the highest court in the land. He lies about big things. He lies about small things. If you’ve been trying to keep up, here’s a running list of all of Kavanaugh’s lies thus far. “No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination.”
Date: July 9, 2018 Under Oath: Nope, just in front of his wife, two daughters, and the American people!
To kick off his nomination to the highest court in the land, Kavanaugh introduced himself to the American public with this preposterously fantastical and unknowable pronouncement as an obsequious gesture to Trump. There may seem to be pressure to genuflect to a wannabe authoritarian who exchanges love letters with North Korean dictator Kim Jong-un and whose sycophantic cabinet members shower him with effusive praise in meetings. But Gorsuch did no such thing in his nomination speech , instead maintaining an appropriately respectful manner. File this one under: Come the fuck on. “I grew up in a city plagued by gun violence and gang violence and drug violence.”
Date: September 5, 2018 Under Oath: Uh, yeah
Here’s another needless whopper. On the second day of Brett Kavanaugh’s Supreme Court confirmation hearing, Senator Dianne Feinstein (D-Calif.) asked him about his dissenting opinion on the court’s 2011 ruling upholding D.C.’s ban on assault weapons, for which he made the novel assertion that banning a class of arms is “equivalent to a ban on a category of speech.” Kavanaugh intimated that he had personal familiarity with the gun-violence issue. This was pure bullshit. The only child of a judge and a lawyer, he grew up in one of the country’s most elite communities: Bethesda, Maryland, where the average annual income is now $146,664 (the national average income is $51,939) and the homicide rate was 2.1 deaths per 100,000 from 2009-2015. The local media had some fun with that one . “I went to an all-boys Catholic high school, a Jesuit high school, where I was focused on academics and athletics, going to church every Sunday at Little Flower, working on my service projects, and friendship, friendship with my fellow classmates and friendship with girls from the local all-girls Catholic schools.”
Date: September 23, 2018 Under Oath: Not this time
In a Fox News interview with Martha MacCallum, Kavanaugh portrayed himself as an altar boy. This was a departure from his high school yearbook page, which boasted of “Keg City Club (Treasurer)—100 Kegs or Bust,” and his high school friend Mark Judge painted an entirely different picture of those days in his memoir, Wasted: Tales of a Gen X Drunk . “If such as thing had a happened, it would’ve been the talk of campus. The women I knew in college and the men I knew in college said that it’s inconceivable that I could’ve done such a thing.”
Date: September 23, 2018 Under Oath: Nope
In the same Fox News interview, MacCallum asked Kavanaugh about a New Yorker article on Debbie Ramirez, who claimed a drunk Kavanaugh exposed himself to her in a room of people at Yale. Indeed, it was the talk of the time. A few students, including Richard Oh and another anonymous student, remember hearing about the incident at the time. Kavanaugh’s Yale roommate, James Roche, didn’t seem to think it would be implausible for Kavanaugh to expose himself to Ramirez. “Based on my time with Debbie, I believe her to be unusually honest and straightforward and I cannot imagine her making this up,” Roche said in a statement. “Based on my time with Brett, I believe that he and his social circle were capable of the actions that Debbie described.” “I’ve always treated women with dignity and respect. Listen to…the women who have known me since high school, the 65 who overnight signed a letter from high school saying I always treated them with dignity and respect.”
Date: September 23, 2018 Under Oath: No
Kavanaugh’s Georgetown Prep classmate Sean Hagan also countered his claim of treating women in a respectful manner. “They were very disrespectful, at least verbally, with Renate,” Hagan told The New York Times for an article titled ” Kavanaugh’s Yearbook Page Is Horrible, Hurtful to the Woman It Named .””I can’t express how disgusted I am with them, then and now.” One of the women who had signed that letter Kavanaugh cited was Renate Schroeder Dolphin. “That yearbook reference was clumsily intended to show affection, and that she was one of us…It was not related to sex.”
Date: September 27, 2018 Under Oath: Yup
About that New York Times article, in Kavanaugh’s opening statement for the last Senate Judiciary Committee hearing, he denied its reporting. The article identified Dolphin as the “Renate” listed at least 14 times by football players in that yearbook, including a mention of “Renate Alumnius” on Kavanaugh’s own page. A “tribute” by another student was this poem: “You need a date / and it’s getting late / so don’t hesitate / to call Renate.”
Peculiarly enough, despite Kavanaugh’s claim that this was an affectionate in-group phrasing, Dolphin hadn’t heard it until this past month when The New York Times reached out to her. “I can’t begin to comprehend what goes through the minds of 17-year-old boys who write such things,” she said, “but the insinuation is horrible, hurtful and simply untrue. I pray their daughters are never treated this way.” In a follow-up in The New York Times after the hearing, four former Georgetown Prep students dispute the honesty of Kavanaugh’s opening statement and assert that the reference was, indeed, a degrading, unsubstantiated sexual boast. “That refers to flatulence. We were 16.”
Date: September 27, 2018 Under Oath: You better believe it
In reviewing more of Kavanaugh’s 1983 high school yearbook page, Senator Sheldon Whitehouse (D-RI) asked him what “boofed” meant in his entry “Judge, have you boofed yet?” and, well, Kavanaugh proffered a completely new definition for the slang. The New York Times interviewed multiple Georgetown Prep classmates prior to his testimony, and none had heard of his definition but identified it by the more commonly known meaning of anal sex in the 1980s. “Drinking game.”
Date: September 27, 2018 Under Oath: Uh-huh
Continuing on with Rosetta Stoning Kavanaugh’s yearbook page, Whitehouse asked what “Devil’s triangle” referred to, and Kavanaugh replied that it was a drinking game with three glasses in a triangle played in a similar fashion to quarters. Again, Georgetown Prep contemporaries had never heard of that definition either, but identified the more commonly known meaning of group sex between two men and one woman. (Curiously, no such definition seemed to exist anywhere online—until a Wikipedia edit was submitted from the U.S. House of Representatives shortly after Kavanaugh’s testimony.) “The explanation of Devil’s triangle does not hold water for me,” said William Fishburne, who managed the Georgetown Prep football team while Kavanaugh was a senior, told The New York Times. “I’m known to have a weak stomach.”
Date: September 27, 2018 Under Oath: Yes indeed
Whitehouse also asked Kavanaugh about another of Kavanaugh’s yearbook entries: “Beach Week Ralph Club — Biggest Contributor.” Beach Week was a party week for Georgetown Prep kids and ralphing, as most sentient humans know, refers to throwing up. Here Kavanaugh preposterously claims that he had a reputation for tummy troubles and that there was an entire club dedicated to it during his high school’s party week. Yale classmate Swisher also disputes that Kavanaugh was ever known for his weak stomach; he was, however, known for being a “sloppy drunk.” “But I did not drink beer to the point of blacking out… Passed out would be—no, but I’ve gone to sleep, but—but I’ve never blacked out.”
Date: September 27, 2018 Under Oath: [ sigh ] Yes
Kavanaugh made his liking for beer a central part of his testimony, mentioning it no less than 28 times and claiming, ridiculously: “If every American who drinks beer or every American who drank beer in high school is suddenly presumed guilty of sexual assault, will be an ugly, new place in this country.” Over and over, he disputed, as Klobuchar put it, that he “drank so much that you didn’t remember what happened.” And he had already previously denied to Martha MacCallum in a Fox News interview that there was “ever a time that you drank so much that you couldn’t remember what happened the night before.”
The “blatant lying” and “lying under oath” inspired two of his Yale classmates to dispute his account in separate CNN interviews. Brookes described him as ” stumbling drunk ” and said, “I can almost guarantee that he doesn’t remember that night.” Swisher countered that “there’s no problem with drinking beer in college; the problem is lying about it ,” and that “I don’t think many of his answers were credible.” “Dr. Ford’s allegation is not merely uncorroborated, it is refuted by the very people she says were there, including by a longtime friend of hers.”
Date: September 27, 2018 Under Oath: …yes
This is outright false. Two of the witnesses—Leland Ingham Keyser and Patrick J. Smyth—whom Blasey Ford named, couldn’t remember the night in question, which would make sense given that it was an uneventful gathering for them dating back several decades. Mark Judge, the only witness in the room, refused to testify to the Senate Judiciary Committee. Keyser, the longtime friend, previously told The Washington Post she believes Ford’s allegation. After the hearing, Keyser released another statement through her lawyer reiterating that she “does not refute Dr. Ford’s account, and she has already told the press that she believes Dr. Ford’s account.” “No. Again, I was not aware of that matter in any way whatsoever until I learned it in the media.”
Date: April 27, 2004 Under Oath: Yup!
During Kavanaugh’s nomination hearing to be a Court of Appeals judge on the D.C. Circuit, he was asked about the 2003 scandal known as “Memogate,” dubbed as “digital Watergate” by Senator Patrick Leahy (D-VT). Republican aide Manny Miranda used a computer glitch on a shared server to gain access to 4,670 confidential memos on judicial strategy from Democrats on the Judiciary Committee. Information from them was shared with staffers at President George W. Bush’s White House, including Kavanaugh, then in the White House counsel’s office. The Senate sergeant-at-arms investigated it, and Miranda resigned without being charged of a crime. Senators Hatch, Schumer, and Durbin all asked Kavanaugh whether he had knowledge of the information. Kavanaugh denied knowledge of the stolen memos multiple times. But in a newly released e-mail from March 28, 2003, with the subject “For use and not distribution,” Kavanaugh received eight pages including the phrase: “as I mentioned on Friday, Senator Leahy?s staff as distributed a ?confidential? letter to Dem Counsel.” “I’m not aware of the memos, I never saw such memos that I think you’re referring to. I mean, I don’t know what the universe of memos might be, but I do know that I never received any memos and was not aware of any such memos.”
Date: May 9, 2006 Under Oath: You better believe it!
Two years later, Memogate resurfaced again in Kavanaugh’s nomination for judge for the District of Columbia Circuit. Senator Durbin questioned him again, as did the late senator Ted Kennedy. And again, Kavanaugh unequivocally denied knowledge of them. That same year, the nonpartisan American Bar Association downgraded its endorsement of him from “well qualified” to “qualified” after its judicial investigator conducted dozens of interviews with lawyers, judges, and former colleagues, some of whom raised questions about “his professional experience and the question of his freedom from bias and open-mindedness” and his ability “to be balanced and fair.” “I was not involved and am not involved in the questions about the rules governing detention of combatants or—and so I do not have the involvement with that.”
Date: May 9, 2006 Under Oath: Yeah…
As White House staff secretary, Kavanaugh worked in the Bush administration during the good ol’ days of torture, warrantless wiretapping, and Abu Ghraib. Senator Richard Durbin (D-Ill.) asked Kavanaugh about the nomination of William Haynes, former general counsel to the Defense Department, to be a judge on the Fourth Circuit and his knowledge of Haynes’s role in crafting the administration’s detention and interrogation policies. In 2007, NPR reported that, in fact, Kavanaugh had weighed in on the question of detention, advising White House lawyers that Justice Anthony Kennedy “would probably reject the President’s claim that American combatants could be denied access to a lawyer.” While previous Supreme Court nominees made the bulk of their documents available, only 4 percent of Kavanaugh’s paper trail was made available to the public, and it begs the question of whether there’s even more documentation countering his testimony on the matters. “I do not remember any such comments.”
Date: September 10, 2018 Under Oath: Mmmmhmmm
In responding to written questions, Kavanaugh repeatedly denied knowledge of Judge Alex Kozinski’s infamously inappropriate conduct, including e-mails (“Easy Rider Gag List”) and sexual harassment, some of which led to Kozinski’s resignation after 15 women accused him of sexual misconduct. Kavanaugh clerked for Kozinski, who was the chief judge on the Ninth U.S. Circuit Court of Appeals, and maintained a close relationship. J. D. Vance wrote that Yale Law School dean Amy Chua, who wrote a glittering endorsement of Kavanaugh in The Wall Street Journal, told Vance that Kozinski was a ” scumbag .” One of Kozinski’s other former clerks, Heidi Bond, wrote in Slate that “having clerked in his chambers, I do not know how it would be possible to forget something as pervasive as Kozinski’s famously sexual sense of humor or his gag list.” It was an open secret in the legal community, particularly the very circles that include Kavanaugh. MORE STORIES LIKE THIS ONE GET THE
Why Cops Can Use Face ID to Unlock Your iPhone
Why Cops Can Force You to Unlock Your Phone With Your Face Kevin Hagen/Getty Images
You lock your phone so other people can’t access it. But how you lock your phone is an important factor in whether law enforcement can compel you to unlock it. Apple’s year-old Face ID system is no exception. On Sunday, Forbes reported the first known example of law enforcement anywhere using a suspect’s face to unlock a phone during an investigation.
The question of whether cops can force someone to unlock their phone in the US for a search hinges on Fifth Amendment protections against self-incrimination—that no one “shall be compelled in any criminal case to be a witness against” themselves. Privacy advocates argue that this extends to the act of unlocking a phone or generally decrypting data on a device. But while that line of thinking has succeeded as a defense against having to produce a passcode, it works less reliably in the context of Touch ID or other biometrics. Something you know, like a passcode, is easier to view as testimonial—legally speaking, a statement made by a witness—than something you have, like a physical attribute. “Big picture, a warrant is required for the search of a device except in certain circumstances at the border,” says Greg Nojeim, director of the Freedom, Security and Technology Project at the Center for Democracy & Technology. In the newly reported Face ID case, police did have a warrant to compel 28-year-old Grant Michalski of Ohio to unlock his smartphone, and Michalski has gone on to face child pornography charges. “The next question is whether a person has a right against self-incrimination in providing the tool that law enforcement would use to search the device—a password or a fingerprint or a face,” Nojeim says. “For the issue about whether you can be compelled to provide your fingerprint or your face, so far the courts are ruling that fingerprints and faces are not testimonial, and therefore there isn’t a Fifth Amendment violation. In terms of whether compelled disclosure of a password is a violation of the Fifth Amendment, the majority of courts are saying it is.”
“You should understand that you do have the power to withhold your passwords from law enforcement.” Stephanie Lacambra, EFF Which means that in Michalski’s case, the seemingly remarkable instance of unlocking a suspect’s iPhone by pointing it at his face was likely entirely straightforward for police. “It’s not at all surprising to me that this happened. In fact, it seems as though Face ID opens up less invasive ways for police officers who have authority to access data on a phone,” says Ahmed Ghappour, an associate law professor at Boston University who specializes in cybersecurity and criminal law. “There might be less intrusion and physical coercion with forcing a faceprint versus a fingerprint.” The Supreme Court has not decided the issue directly for either biometrics or passcodes, though. This could mean that an opening still exists to make the case that the Fifth Amendment should protect against decryption by any means. “It is EFF’s position that compelled decryption, whether by biometric or alphanumeric password, should be protected by the Fifth Amendment because decryption is always testimonial,” says Stephanie Lacambra, a criminal defense staff attorney at the Electronic Frontier Foundation. “You should understand that you do have the power to withhold your passwords from law enforcement.” Until a definitive court decision, though, if you’re at all concerned about compelled unlocking of your phone, you’re better off using a strong six-digit passcode than your fingerprint or face. Just don’t count on that to protect you in all situations, because there are case by case circumstances that can impact the chance of a successful Fifth Amendment defense. A crucial caveat to Fifth Amendment protections in general is something called the “foregone conclusion” doctrine, which essentially says that if prosecutors already know a piece of information, that information is not protected by the Fifth Amendment, because it can independently be proven true. This means that testifying to confirm it is not self-incriminating. US courts have issued mixed decisions on how to interpret applying the foregone conclusion doctrine to compelling a person to produce a passcode. Things get even more complicated at the US border. As of January, US Customs and Border Protection has a new policy—built on a Ninth Circuit case decision —that its agents can do basic, manual phone searches at the border, even without any suspicion of a crime. Meaning agents can look through any phone they want.
“It’s not at all surprising to me that this happened.” Ahmed Ghappour, Boston University CBP does require “reasonable suspicion”—a notch below probable cause—before its agents can execute a forensic search of a device, in which they connect it to a system that crawls or downloads its contents for deeper analysis. This more invasive search doesn’t require a warrant, however, because the courts have found that taking the time to seek them is not practical at the border. US Immigration and Customs Enforcement has its own digital-device search policy. Unchanged since it was issued in 2009, ICE guidelines say agents can do both basic and in-depth forensic searches on any device without suspicion. In general, digital searches have become more prevalent and more involved at the border in recent years, and it is unclear how far Fifth Amendment protections might extend in these situations. Forcing you to unlock your phone also isn’t law enforcement’s only avenue to access a device. Departments and agencies develop and buy hardware and software workarounds that can grant access without any involvement from a device’s owner. But while tech companies— particularly Apple —and cops wage an endless battle of plugging these holes and discovering new ones, compelled unlocking is a consistent question that still doesn’t have a clear resolution. Regardless of how law enforcement might get in, though, legal analysts agree on one thing: If a person’s device isn’t locked to begin with, there’s no barrier at all to getting access, legal or otherwise. So you might as well slap a passcode on there. “There’s a large number of people who don’t protect their information at all by putting a password or other protection before law enforcement or a thief could get it,” CDT’s Nojeim says. “That’s still very common, and people need to pay more attention to securing data as much as they can.” More Great WIRED Stories Everyone wants to go to the moon— logic be damned College Humor gives comedy subscription a serious effort Tips to get the most out of Screen Time controls on iOS 12