Ars Technica isn’t a website for criminal lawyers, even though there are often posts that will be of interest to criminal lawyers. It’s a tech website. So why then, aside from having shit to throw up on the screen, would they try their best to make their readers stupider?

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).

Oh wait. That’s the basic idea? Nice of Cyrus Farivar to explain what he thinks the basic idea is. Because, you know, he knows stuff. No, he’s not a lawyer, but hey, he writes for Ars, so shouldn’t he be explaining law to nerds? What could possibly go wrong?

For the most part, Fariver’s post isn’t exactly wrong, and to his credit, he raises actual caselaw, much of which he gets close to right most of the time. There are critical aspects he’s left out of the mix, such as silence not being an invocation of rights, or when silence can be used against a defendant. But these are higher order discussions of the law, and there’s no reason someone at Ars should have a clue about them. Or the law.

But the title of the post, clickbait for sure, was dredged from the tech interest buried deep within the post-Riley world, where the Supreme Court finally acknowledged that the contents of cellphones and other digital storage devices is “special.”

Here’s what a “digital Miranda warning” might look like

Smartphone owners need to know if—and when—they need to reveal their passcodes.

…

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.”

So why, given that there have been far, far stupider posts about Miranda, about talking to the police, about digital security, take issue with this post? Because nobody will ever use their one call to reach out to Farivar when they get busted and say, “yo, what you wrote sucked, dude.”

For all the times criminal lawyers try to explain why people need to invoke their rights, how to invoke rights, when to invoke rights, one post like this can undo the benefit and create a world of hurt.

Contrary to Farivar’s “basic idea,” the Supreme Court’s “basic idea” of Miranda was that it would be the end of people talking to the police, as nobody would be so foolish as to not invoke their rights not to be interrogated. That would be nuts. But then, the justices may have been brilliant in some ways, but they didn’t understand people very well.

People talk. They can’t help themselves. How do we know this? Because Miranda did nothing to end people talking to cops. And as it turned out, as it almost always turns out, Miranda not only failed to accomplish its basic idea, but provided a road map to cops for how to work their way around the right to remain silent and right to counsel. Its progeny, from Schneckloth to Salinas, only added to the confusion.

There will be no “digital Miranda warning,” nor should there be. It won’t happen for numerous reasons, not the least of which is that the Supreme Court isn’t going to change a warning after a million Miranda cards have been printed, but also because the warning addresses the rights, not the infinite circumstances under which the rights might be invoked.

It would be nice to require cops to give the warning in non-custodial situations, particularly since the line between arrest and whatever they want to call it when you’re surrounded by police and have the distinct sense they will beat you senseless if not shoot you should you try to walk away is a bit blurry, but it won’t happen. It would be nice if the Miranda warnings could offer not merely the rights, but the means to invoke them, since it takes a lawyer to know how to invoke your right to a lawyer. But it won’t happen.

And even if it did happen, people will talk anyway. They will give cops their password, their biometrics, the location of their stash and the reason why they pulled the trigger. Because that’s what people do.

This is what makes posts like Farivar’s at Ars troubling: somebody on a big soapbox is making the world a little worse for having read their post. It’s not that his post is wrong, even if shallow and imprecise. It’s that we, the people who have to deal with what they leave behind, keep pounding away at a simple message. We keep sending a message that can be easily remembered, easily performed, under the enormous stress of being questioned by police.

When there is no time to run through the dozen cases, the complications of varying scenarios, the limited grasp of when a cop can do one thing, but not another, and how you tell which is which, and how to say it to the cops in a way that will help you rather than destroy your life, the solution is to keep it simple.

When a cop asks you questions, regardless of whether you are free to leave or in custody, regardless of whether it has to do with your phone, your password, your fridge, your toilet bowl, say these words:

I want to speak with my lawyer.

Then stop talking, except to repeat those words to each new police officer you meet.

Memorize them. Forget everything else about the law, as it will only confuse you. No matter what else the cops tell you, threaten you, order you, just say these words. And stop looking for legal advice from non-lawyers, no matter how click-baitable the title to their post.

H/T Hal Foster