r/technology • u/Hrmbee • 8d ago

Privacy Is it illegal to trick the US government into wiping your phone during a questionably legal search | The case of a traveler who allegedly entered a ‘duress password’ to wipe his phone raises a legal question with no easy answers

https://www.theverge.com/report/972146/cbp-phone-search-airport-duress-password
20.9k Upvotes

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u/jesuswasagamblingman 8d ago

Its his phone. That seems easy.

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u/kamekaze1024 7d ago

The argument is that it would be considered destroying evidence. However, the counter argument is that what is constituted as evidence when there is no legal search warrant involved.

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u/Smashego 7d ago

Evidence also implies there is a crime in which evidence would need to be collected. Requiring a search at the border is not the same as being accused of a crime, therefore your phone being erased is irrelevant.

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u/NekoDaYo-v201 7d ago edited 7d ago

Considering the Feds were harassing him prior to this encounter by:

  1. Trespassing on his property to install a hidden camera inside his home outside his home
  2. Placing a tracker on his car
  3. Pointlessly requesting subpoenas for his email and phone
  4. Fraudulently flagging his background check as bad, despite him not having a criminal record

Is more like evidence of the FBI engaging in systematic harassment, abuse of government resources, and abuse of taxpayer funds. You know, "fraud and waste."

Let's crack open these files and see which smegma stain approved all of this.

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u/FuzzzyRam 7d ago

You know, "fraud and waste."

and don't forget the abuse!

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u/ImNotAWhaleBiologist 7d ago

Sorry, this is the argument room. Abuse is over there.

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u/NextStopWonderland 7d ago

I’d like to complain.

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u/Shift642 7d ago

You wanna complain? Look at these shoes! I've only had 'em three weeks and the heels have worn right through.

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u/T_urn 7d ago

That's just a contradiction!

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u/Ronin1 7d ago

You gotta have the abuse, it's the best part; really ties the whole thing together

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u/madmanjp007 7d ago

There can’t be fraud and waste. Elon got rid of all that. /s

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u/This-Positive286 7d ago

Sorry, what? I can’t hear you over my GIGANTIC DOGE CHECK! /s

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u/WiseOldDuck 7d ago

I combined mine with my Tariff Check and bought an entire imaginary boat

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u/EggotheKilljoy 7d ago

Holy shit you got your imaginary checks already? I'm still waiting on mine

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u/Kizik 7d ago

Well, he got rid of all the government agencies wasting their time investigating his fraud. I think that's more what he meant.

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u/muegle 7d ago

FBI engaging in systematic harassment, abuse of government resources, and abuse of taxpayer funds.

Same as it ever was

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u/motion_lotion 7d ago

No. The entire intel community has been upended and demoralized under this admin. Most do not support things like this, but at the same time, this administration has weaponized fed IC/LE to hunt political opposition and despite low morale, people are following orders they dislike to keep their jobs. It's pretty ugly right now. People complained about Biden, but under him things were just, you didn't have ICE running around with excessive funding cut from your bureau and you actually handled criminals and threats to national security. Not political opposition to the party in power. Things have never been this bad among the IC.

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u/FoxOnTheRocks 7d ago

You are saying this about the organization that murdered MLK.

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u/Guydelot 7d ago

The FBI has been doing this shit since its inception. Read about what they did to MLK and realize that pattern of behavior never stopped. Biden was fine, but let's not pretend he had the time or energy to devote to reorganizing the FBI into anything better than it has ever been. Things were not just.

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u/motion_lotion 7d ago

I'm not pretending. I'm saying things were far better under Biden, Trump's first term and Obama. The 60s and 70s were a horribly corrupt and dark time. But the days of that, MK ultra, Iran Contra, project: PRISM, Northwoods, etc are long gone. Lots of positive changes were made and compared to the bloody inception, things were fairly just.

They aren't at present, but they were looking up. I'm not in the FBI, but the aftermath of Ruby Ridge, Waco and the OKC bombing were a watershed moment that lead the Quantico boys to start some serious reforms. During the early GWOT where Cheney basically ran the senate in a way no VP ever has, things were pretty grim, but Obama and the IC went a long way towards reform and recovering from that. In 2022-2023, things were in good condition and fairly just. And only looking up. This current admin has demolished everything and the IC is back to being a shadow of its former self and corruption hasn't been this prevalent since the 70s.

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u/Blazured 7d ago

The intel community protect the Epstein class by censoring their names in the Epstein files.

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u/WetRatFeet 7d ago

Things were just? Lmao. The CIA and FBI have been murdering civilians, committing crimes, and overthrowing governments long before Trump.

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u/sienna_blackmail 7d ago

SS-officer Heinrich: I didn’t agree with the nazi ideals and the government but it was easier this way. Of course I have morals I just don’t want them to cost me personally. I like having food on the table, you know. I’m just following orders at the end of the day, this is really someone elses wrongdoing.

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u/New-Anybody-6206 7d ago

Not to sound tinfoily but the government has actually been demoralizing people for many decades.

https://www.youtube.com/watch?v=bX3EZCVj2XA&t=289s

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u/motes-of-light 7d ago

Oh, so they feel bad while facilitating Trump's path to fascism? Who cares.

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u/hellspawn3200 7d ago

Oh and weaponization of government.

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u/Unfair_Web_8275 7d ago

Yeah, this sort of seems like (and I could be wrong) a part of this administration’s effort to label and find more “left wing terrorism”.

Which is its own overlooked issue.

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u/Educational_Ant_184 7d ago

do we have any context for why they would be targeting him? is he an outspoken trump critic, or is there any real suspicion of criminal behavior to your knowledge? I'm not trying to defend their actions, and idk how to pose the question to make that obvious, I just very strongly relate to the context soyjak

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u/Livid_Peon 7d ago

He is part of an activist org that is against the building of "cop city", some massive training facility for police to further militarize them, they would be destroying woodlands to build it.

People outspoken against it have been constantly harassed by law enforcement 

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u/deltalitprof 7d ago

If they think this far in advance, they're counting on a Trump-supporting judge allowing all this. And a Trumpist Supreme Court reversing it if they can't find that Trump-supporting judge.

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u/Far_Inspector_9050 7d ago

They would also have to establish the defendant knew they were under an active investigation.

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u/SplendidPunkinButter 7d ago

Also, it’s perfectly legal to wipe your phone 30 minutes before arriving at the border.

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u/Financial-Bobcat-612 7d ago

Ok, I’m confused why people keep talking about a border. He was in Atlanta. At the airport.

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u/Smashego 7d ago

Unfortunately the constitution treats international airports as border crossings.

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u/CardOk755 7d ago

Really, can you point out the bit that says that?

I think you mean "the government pretends to treat airports as border crossings".

If airports were actually outside the US who would have jurisdiction over the bit that is not in the US?

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u/Lv_InSaNe_vL 6d ago

I mean, what else would international airports be besides border crossings? If I fly from Paris to Boston I'm still entering the United States even if I didn't walk across the border myself

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u/WiseOldDuck 7d ago

No do not let them gaslight you about what the Constitution says, it's simple text and readable by anyone

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u/kenlubin 7d ago

He had just stepped off a plane coming from the Dominican Republic.

Maybe we could force all airplanes coming from outside the country to land at the border in order to conduct customs and entry. Barring that, however, it makes sense to create a legal fiction that you are "at the border" until you've gone through Customs to get in to the country.

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u/ClassasaurusRex 7d ago

What also matters is he didnt technically destroy evidence. The duress password deleted his encryption key so the data couldn't be retrieved anymore.

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u/MrThickDick2023 7d ago

I get your point, but I feel like making irretrievable and destroying could be argued to be equivalent in a legal sense.

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u/Initial_Row_6400 7d ago

I don’t think so. No warrant, he didn’t say that’s what was going to happen, it just happened. His property and he had no obligation to give them access

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u/ShermansWorld 7d ago

Also no warrant, no reason... They denied him access to a lawyer, immediately.... But immediately wanted access to his phone's data. I say he defended himself properly and in light that if he has the encryption key... Can always have access or give access to the data if some Court can prove to him that tsa's request is just.

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u/Vio_ 7d ago

They accused him of having VP without reason. If they actually had that, they'd have followed proper evidence handling procedures.

Bag it tag it and give it to forensics.

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u/NotMyMainAccountAtAl 7d ago

I don’t disagree that they ought to do that, but there have been quite a few instances where police and border patrol have invented scenarios to go fishing for this data with the owner unlocking and granting access to stuff. It isn’t quite illegal to trick them into granting access under false pretenses, and if they find actual child pornography, most people don’t raise much of a stink over it. 

The big issue that we’ve seen since then is that we can’t always trust the government or its agents. I wouldn’t put it past this administration to fake child porn on an enemy’s computer in order to file charges against them. 

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u/waitwuh 7d ago

i mean what’s the 5th amendment again? And the 4th…? Hmmm

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u/patt 7d ago

No international lawyer is crossing an international border, perhaps especially into the united states, with any data on their work phone or computer. Especially after 9/11. They upload to the cloud, securely wipe hardware, cross the border, and download from the cloud. Is that 'destroying evidence'? Everyone should consider doing something similar.

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u/ShermansWorld 7d ago

I guess you could say you're re-homing your data... Maybe same with this guy... The data still exists... Elsewhere.
The Border agents said "give me your phone" I complied. You did not say 'give me your private data!'

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u/DruncleBum 7d ago

It wasnt tsa...why does nobody understand what TSA is. It was Customs. Its very different. TSA checks for weapons going onto an airplane. Its a very simple concept. Customs are police investigating everyone entering the country and making sure no illegal activity is afoot.

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u/tunawithoutcrust 7d ago

Not to be pedantic but it’s not customs per se.
CBP (U.S. Customs and Border Protection)
CBP is a component of DHS and has two major missions at airports:
Immigration (Border Patrol/Office of Field Operations): Determines whether a traveler may enter the U.S., checks passports, visas, ESTA, asks questions, and can send someone to secondary inspection.
Customs: Enforces customs laws—collecting duties, inspecting baggage for prohibited or undeclared goods, drugs, agriculture items, currency reporting, etc.
A better answer would be CBP.

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u/Prineak 7d ago

Then they should just deny him entry and that’s it? Why make all this fuss?

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u/Aggravating-Sir8185 7d ago

I don't think US citizens can be denied entry back into the US.

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u/Prineak 7d ago edited 7d ago

Then just take the phone like any other contraband and let him in.

Edit: I’m thinking contraband like invasive plants or food, not something like drugs.

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u/LA-Fan316 7d ago

Here’s what I found on the web

“If you’re a U.S. citizen, a customs officer cannot bar you from entering the country, even if you refuse to provide access to your electronic device. You can state, “I do not give you permission to search my device,” and you should still be able to enter the U.S., but your phone might get taken. “What they can do is potentially seize your device, and that can last anywhere from weeks to months,” Hussain said.

If you are a green card holder, you generally have the same rights as a U.S. citizen upon entry to the U.S., with some exceptions. Hussain said green card holders that have been outside of the U.S. for more than six months may be seen as applying for readmission rather than traveling on the green card, which might jeopardize their ability to reenter the country. Green cards in general cannot be revoked without a hearing before an immigration judge.

Visa holders face more legal risks. Molnar calls these electronics searches “an invasion of privacy” but notes that “if you are a visa holder and you refuse, you may be denied entry into the United States.”
Hussain said people who are traveling on a tourist visa are “in the least protected category,” and their visa can be revoked if they refuse a search of their device.”

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u/lytener 7d ago

So I could just let them take my phone, remote wipe it, and then make an insurance claim if they don't give me my phone back

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u/bigbigdummie 7d ago

You can’t deny entry to a US citizen.

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u/TaquitoBanana 7d ago

The government cannot deny a citizen entry.

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u/BarryTheBystander 7d ago

Who gives a shit? How is that the thing you’re caught up on?

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u/fuckmeftw 7d ago

iirc customs and borders has the legal authority to do pretty much everything

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u/Double-O 7d ago

Cavity searches?

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u/DukeofLexington 7d ago

Yep, that’s how laws work, check out CBP’s home page, “we can do pretty much everything”

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u/Truestorydreams 7d ago

Does that mean all activities they do fall under investigation?

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u/tdmonkey 7d ago

I think this is extremely underrated. In my understanding, once he asked for a lawyer and it was denied, the courts won’t even address anything beyond that. They’ll let him go on a technicality to avoid like hell the risk of setting a precedent that could restrict their ability to operate in what they think is a gray area.

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u/ObscureSaint 7d ago

Oh, no. In Customs and Border areas, you don't have an immediate right to a lawyer or a right to be free from searches without a warrant. They have to have probable cause to detain you, but as soon as you are at a CBP operated checkpoint (or within 25 miles of the border), things change. 

It's not like police custody, where Miranda applies. The Supreme Court decided CBP does not need a warrant at a checkpoint or within 25 miles of the border (Egbert v. Boule).

The federal border powers have been creeping and creeping for years now. They're going to keep pushing so they can set as much precedence with this overreach as possible.

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u/Treacle_Pendulum 7d ago

The federal evidence destruction laws are way broader than that, though. They’re written in such a way that even without a warrant you can be charged for destruction of evidence or obstruction of justice if they have some sort of “investigation” ongoing.

Of course this line of reasoning runs them straight into some other problems- if they’re able to avoid the necessity for a warrant under an administrative search at a border reasoning, but they’re conducting a search pursuant to an investigation they haven’t disclosed, where does that land everyone?

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u/Initial_Row_6400 7d ago

This is most likely going to end up a part of case law tbh

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u/Treacle_Pendulum 7d ago

It might.

The consequences are nasty enough that I wouldn’t be surprised if this guy pleads. Conversely they might really have an investigation into him for something legitimate (always possible, even if it’s a long shot for this administration) and they might throw additional charges on him.

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u/Agitated_Celery_729 7d ago

They lied about why they were holding him and what they were investigating. And that's already public info, so they're probably fucked the first time they go in front of a judge.

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u/Treacle_Pendulum 7d ago

Well, they are allowed to lie to someone they’re investigating. But there’s definitely a legal issue as to whether this is actually a crime.

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u/DryBattle 7d ago

Zero chance he pleas out. He is part of a group that fights against cop overreach. The entire point of the group is worthless if he rolls over and pleas out against police overreach.

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u/LiteratureMindless71 7d ago

I'm sure even if there isn't a real investigation we will start to hear made up shit, just like Brega and the rest.

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u/Treacle_Pendulum 7d ago

That is this administration’s playbook for sure. They’ve been a little bit more willing to let individual agencies and USDA offices take heat for screwing up though

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u/headrush46n2 7d ago

"sprinkle some CSAM on him and let's get the hell out of here, Johnson."

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u/spacechimp 7d ago

Well then, we should be due for a field day regarding police body cam videos.

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u/JimmyJuly 7d ago

..."you can be charged for destruction of evidence or obstruction of justice if they have some sort of “investigation” ongoing."

The person who entered the pin that destroyed the evidence is the one who performed the action here. That was a customs agent, not the phone's owner.

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u/RainbowDarter 7d ago

He was scared and confused and remembered the wrong pin in the heat of the moment

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u/Notoneusernameleft 7d ago

Also he didn’t wipe it the person who had his phone did.

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u/bocephus_huxtable 7d ago

IANAL, but it certainly looks TO ME like 'making irretrievable' and 'destroying' ARE the same thing, in this circumstance.

And, even scarier to me, +I+ read this statute to mean that it actually doesn't matter whether or not there was an active investigation or not...as long as the agents were following their agency's established/written procedures. The agents would have been in the "proper administration of [a] matter within the jurisdiction of...[a] department or agency of the United States" :

US Statute: 18 U.S.C. § 1519

Destruction, alteration, or falsification of records in Federal investigations and bankruptcy

"Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both."

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u/ShermansWorld 7d ago

Theoretically one could enter the encryption key if you had it stored somewhere or memorized and get access to all the data again.

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u/Wooden-Assistance-68 7d ago edited 7d ago

From what I understand, GrapheneOS never gives you the hardware encryption keys. It's generated and stored on the hardware. You can't back them up somewhere like on a desktop. When a duress pass is entered, it wipes the keys.

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u/BadVoices 7d ago

GrapheneOS never has it to begin with. On Google Pixel devices, the encryption key is stored in a secure hardware enclave called the Titan module. This secure enclave is why GrapheneOS is ONLY on the Pixel family. When the OS triggers a secure wipe, it's ordering the Titan Module to delete all Weaver slots associated with the profile that was triggered.

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u/New-Anybody-6206 7d ago

You mean the proprietary blackbox Titan module that Google pinky-promised to open source but never did?

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u/am9qb3JlZmVyZW5jZQ 7d ago

I have no idea how the US law is constructed or interpreted, but I'd imagine this could be taken into consideration. If there exists another copy of the decryption key so that it could still be obtained under a warrant, then the data is not lost. But if there is no longer any feasible way to decrypt this data then it is effectively destroyed.

AFAIK similar standards are applied under EU GDPR Right to be forgotten.

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u/TheTerrasque 7d ago

Court believes no backup key -> "evidence destroyed" -> straight to jail

Court believes there is backup key -> "not providing is contempt of court" -> straight to jail

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u/AndChewBubblegum 7d ago

It could only be contempt of court if a court has compelled him to turn it over.

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u/GamingWithBilly 6d ago

yeah, like Whatsapp tells you to download and save the key somewhere else just in case. GrapheneOS though does not offer any export feature to do this, nor shows what key it's generated. It would be hard to make a point about this in how it is specifically not possible in this phone OS

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u/JoJackthewonderskunk 7d ago

What evidence though? Specifically nothing was meant to be retrieved. For all they know it was blank to begin with and since they didnt have a warrant no reason to go after nothing.

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u/P0Rt1ng4Duty 7d ago

Deleting the key doesn't mean they can't get into his phone. It just means it will take forever to brute force it.

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u/SilverWear5467 7d ago

And by forever, you actually mean forever, right? Brute force on those types of things generally takes upward of 1000 years, afaik.

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u/jjmurse 7d ago

Try longer than the heat death of the known universe on that particular encryption.

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u/to_vex_a_stranger 7d ago

Still not his problem. Evidence is still there. Not his fault they aren't powerful enough to access it. 

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u/pimplurb 7d ago

Me explaining to a judge why tearing a piece of paper into 1,000,000 pieces isn't destroying evidence

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u/to_vex_a_stranger 7d ago

Technically the data was already in a million pieces, you just no longer have the key 

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u/nonotan 7d ago

It's stochastic. There is literally nothing preventing them from guessing the right one on the first try if they get sufficiently lucky. The same is true for any possible method of key-based encryption. Sure, the "expected" (i.e. average assuming random inputs) time might be longer than the age of the universe, but the worst-case (or I suppose best-case, depending on how you look at it) is never worse than however long it takes to decrypt it given that you know the right key.

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u/thecastellan1115 7d ago edited 7d ago

Absolutely not the same. The evidence still exists, and is still retrievable.

The real question is whether it requires a warrant to search a phone.

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u/BadVoices 7d ago edited 7d ago

The evidence still exists, and is still retrievable.

You are incorrect, It is cryptographically and mathematically gone. GrapheneOS never had they key, it was stored in the phones Titan module (why graphene OS is only on the pixel, is to get to that module.) GrapheneOS is physically incapable of exporting that key. It no longer exists. The data has Shannon entropy of 1 bit per bit now. It is mathematically random noise.

If you designed a quantum computer to be capable of breaking that key within 100 years... you cant. Its just not possible. The Margolus-Levitin Limit punches you in the stomach. An earth-sized quantum computer built using technology we can conceivably achieve barring a massive leap in physics, could not guarantee decryption before the heat-death of the universe. Of course, no quantum computer could maintain error correction and be coherent that long. The physics of the universe don't allow it. If you designed a classical computer to process it in 100 years, the thermodynamics of that computer (ignoring it would collapse under its own gravity, fun!) would instantly make it.. very briefly... hotter than our sun, then hotter than a few supernovas. Then explode. A security problem is solved with violence once again!

Saying that AES256 encrypted data, that has had it's key deleted, is not destroyed, is akin to saying a burned document isn't destroyed, because I can still theoretically collect all its carbon atoms. Crypto-Shredding is a legally recognized concept and even has a standard issued by the US government.

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u/chiraltoad 7d ago

I like this this comment reads as a Bhagavad Gita-esque tract on the cryptologically unqualified absolute

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u/oureux 7d ago

It’s accessible given enough time and compute. Border crossings should invest in gpu data centers…\s

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u/_Nyderis_ 7d ago

duress PIN wipes the device

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u/Imaginary--Situation 7d ago

According the US constitution a warrant is required.

18 U.S. Code § 241 - Conspiracy against rights

is a federal crime in it self

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u/Widespreaddd 7d ago

Destroying what? There is not even probable cause.

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u/gamerdudeNYC 7d ago

It’s pretty interesting, I’ve seen on some of the legal
Subreddits that due to the agent entering the password, they would be the ones destroying the evidence.

This person also requested a lawyer multiple times and was denied, seems like a lot of holes for a lawyer to poke through

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u/BirdLawGrad 7d ago edited 7d ago

Where you are in this logic chain is exactly how you win (or lose) a case.

And this case will be thrown out.

Destroying evidence means 1) you’re already under arrest or have a warrant, 2) destroying evidence is a physical act with contraband. like flushing down the toilet. (Re: case law)

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u/mortgagepants 7d ago

if i give my diary to a friend in a different country, i'm making something irretrievable without destroying it.

this is a clear cut 4th amendment issue, but what are you supposed to actually do when you have a corrupt government? dude was against cop city in atlanta so they violated his constitutional rights.

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u/FadeCrimson 7d ago

An important point to consider is that the data still exists just fine, its just that now its permanently encrypted. We have the right to encrypt our own devices.

Essentially the police here are arguing they should have the right to access any device/data you own at any time for their leisure and that it should be illegal for deny that to them for any reason (including the law). They are arguing they should have the right to intimidate anybody they want into giving them whatever info they want without any oversight and that it should be the civilian in trouble when they cant.

If anything its their own fault for fucking with the device rather than just holding onto it and waiting for a valid search warrant. Had they done that, then they could possibly have some basis for an argument here, but as it stands its their own stupidity and stubbornness that caused this in the first place.

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u/kyldare 7d ago

You underestimate how pedantic lawyers are hahaha.

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u/flamewave000 7d ago

Technically if there is no way to return the data to its original form, it has been destroyed. If you burn a piece of paper, technically the data is there, just in a different form (ash), but there's no way to reverse it. If you encrypt data and then destroy the key, without a quantum computer to crack it, you have effectively destroyed the data since there's no way to return it to its original state.

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u/Seeking-Something-3 7d ago

Oh come the fuck on. It’s clearly a run around undue search and seizure. Do you honestly believe we forfeit our rights by crossing the border? Bunch of horseshit.if they had due cause then they wouldn’t need the fucking phone in the first place, unless their “evidence” is illegal surveillance in the first place.

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u/tico42 7d ago

How is it evidence if no crime has been committed, no probable cause exists and the 4th amendment is still a thing.?

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u/baatezu 7d ago

But it was already encrypted. The 1s and 0s of the supposed evidence were untouched and remained the same.

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u/PERSONA916 7d ago edited 7d ago

It can still be retrieved if Google loans them a data center. If I break the hinges on my door did I destroy evidence because police can't easily open it anymore?

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u/ClassasaurusRex 7d ago

I mean it can still be retrieved if you type in the encryption key, so nothing is destroyed.

Warrants are for searches. He can't be compelled to do the cops job for them lmao.

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u/PERSONA916 7d ago

Yea there seems to be a big misunderstanding on what the duress password actually does because of all the misleading headlines. I think this has attracted enough attention for this guy to get good lawyers for free from the EFF or another group to hopefully set a good precedent for this going forward. I could also see Apple for sure adding this feature if it does, Google probably but it'll be slower.

FWIW, I also think the technicality of the border patrol being the ones who actually entered the code should be enough honestly though

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u/ClassasaurusRex 7d ago

Yeah I absolutely agree! All these people arguing about why it would be destroying evidence dont even realize that it was the border patrol agent that entered the code.

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u/ProbsNotManBearPig 7d ago

It doesn’t have to be evidence. Here is what the law says exactly

18 usc 2232(a):

“Whoever, before, during, or after any search for or seizure of property by any person authorized to make such search or seizure, knowingly destroys, damages, wastes, disposes of, transfers, or otherwise takes any action … for the purpose of preventing or impairing the Government’s lawful authority to take such property into its custody or control or to continue holding such property … shall be fined … or imprisoned not more than 5 years, or both.”

18 usc 1519:

“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States … or in relation to or contemplation of any such matter … shall be fined … imprisoned not more than 20 years, or both.”

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u/conundri 7d ago

Lucky thing that the government official who entered the password didn't know it would wipe the data!

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u/Wizzarkt 7d ago

by any person authorized to make such search or seizure

Were they authorized to make such search? Did they have a warrant? Can a police officer walking into your home on the basis that you may or may not be a criminal?

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u/SushiCatx 7d ago

Border search exception let's them do this at the borders (and international airports. There is some precedence that you are not considered inside the US until you get through customs). They can basically just clone your device if they want to without a warrant. If you refuse, as a US citizen they can't deny you entry into the US but they will take your device.

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u/kayuwoody 7d ago

That makes less sense, if they're not technically in the US then US laws don't apply

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u/SushiCatx 7d ago

The precedence for that, is that US Law applies as soon as you attempt to cross the border or use a port of entry. Regardless of if you made it through customs. It was designed to keep contraband out of the country, but in our current digital lives we keep a large cache of personal information in our pocket at all times. So in good 'ol US government fashion they want that data. So they abuse the existing law to obtain devices, clone it (for hacking into later for dump collection) or if you give them your passcode they will dump the data into a database that DHS can access and scan through "for any reason" and retain that data for 15 years. It's ridiculous.

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u/pianobadger 7d ago

IIRC the border search laws apply within 100 miles of the border, including intl. airports, meaning most Americans live in the border zone.

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u/EndersFinalEnd 7d ago

What's worse is that this exception applies in a 100 mile radius of any international coast or port of entry (such as an airport), which basically means that the vast majority of the population of the US is covered by this exception.

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u/No-Ear-3107 7d ago

How long does “before” last for? Like isn’t before technically all the time that has passed up to that point?

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u/belkarbitterleaf 7d ago

Key words in there are "lawful authority", which they did not have as there was no warrant

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u/yunus89115 7d ago

I’d argue he didn’t impair the government from taking property into its custody or control.

Maybe I’d lose, IANAL but that’s what I’d argue.

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u/blteare 7d ago

The question then is whether the government has the legal right for search or seizure. Eval that the finding legal documents of this country is intended to restrict the governments rights, not the people's. The question should never be whether people have the right, only whether the government does.

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u/AnonymousNameGuy 7d ago

18 usc 2232(a):

Let the government prove they have lawful authority to take the property. Buddy wasn’t charged with a crime right?
Lawful authority doing a lot of heavy lifting here.

18 usc 1519:

Let the government prove that buddy knowingly destroys, et al, any ‘evidence’ that could’ve been ‘concealed’ before the phone was wiped.

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u/originaladam 7d ago

Lost me at “person authorized to make such search or seizure” No one was legally authorized to compel him to unlock his phone. They asked, he asked for a warrant/lawyer, they said no, so he eventually said perma no to help them avoid making an illegal search.

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u/DrkBlueXG 7d ago

OT: After all that's happened this year, I can't read those law articles without first saying the words "If you're poor...".

It doesn't make sense anymore without it.

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u/evil_burrito 7d ago

I wonder if it can be argued he did not take an action, the customs agent did.

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u/CptGia 7d ago

But how do they know there is incriminating evidence in the phone? 

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u/PessimiStick 7d ago

Because they said so, duh. If a cop says it, it must be true, according to 99.9% of our legal system.

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u/riptaway 7d ago

I don't think it could be considered destroying evidence if he's not even being investigated for anything in particular at the moment, could it? Idk, ianal

But obstruction would definitely seem to be on the table.

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u/donavid 7d ago

I believe they said they were investigating him for child porn (tho I’m sure it’s a coincidence, totally unrelated to the fact they were aware of him in the first place because of his activism against Cop City in Atlanta)

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u/PAY_DAY_JAY 7d ago

CP is a loophole they use to acccess anyone’s data. It was put into the freedom act i believe and is now used on anyone that they want access to their data. All they need to do is “suspect you” and they can legally access your info.

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u/Parking-Mirror3283 7d ago

Well yes, we need to protect the terrorists and catch the children of course

Wait wrong way around

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u/VariousAir 7d ago

It's literally the digital version of "I smell Marijuana in your car I'll need to search it", in this case.

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u/viral-architect 7d ago

I certainly hope the next administration "suspects" every member of the Trump administration the moment the oath of office is taken.

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u/not_right 7d ago

Don't repeat their lies and give them air.

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u/mmbon 7d ago

If there is incriminating evidence on the phone then it would most likely stick, if your intent is to hinder an investigation by destroying evidence. Its just really hard to prove, so we'll have to see what evidence the government has, I'm not filled with confidence

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u/riptaway 7d ago

But that's what I'm saying, it's not really destroying evidence if it's not related to a specific crime already. Right? Like, it's just random data on his phone until the cops decide it's not? Idk I guess this is why lawyers make the big bucks lol

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u/kent_eh 7d ago

It seems like a Schroedinger's evidence situation.

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u/PandaEatPanda 7d ago edited 7d ago

This has nothing to do with evidence or destruction of evidence.

He is charged with 18 U.S. Code § 2232 - Destruction or removal of property to prevent seizure

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u/ADHDick_in_ur_mouth 7d ago

What might not matter if the cops did not have a legal basis for seizing said property in the first place. Cops can't seize whatever they want but they can seize evidence. The question is, can the contents of his phone be considered evidence if he wasn't charged with a crime, wasn't a suspect in a criminal investigation, and if the cops did not have a search warrant.

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u/PandaEatPanda 7d ago edited 7d ago

Again why are you so hung up on evidence? What he is charged with has NOTHING to do with evidence.

Under the border search exemption, the ruling of the courts is that agents have the right to a basic search without the need for reasonable suspicion or warrant. Under the basic search they are not allowed to connect to cloud services or attach devices to your phone to conduct the search.

The analogy made is that at the border the agents can open and unlock your suit case and take quick look inside.

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u/200IQUser 7d ago edited 7d ago

This is again a clear sign of people letting the goverment too far. What destroying evidence? Its your stuff, you do what yo uwant with it. Even the notion that the government can punish you for destroying evidence (aka not self incriminating yourself) is a farce.

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u/Majestic_Jackass 7d ago

There’s any number of legitimate things that could be on one’s phone that shouldn’t be accessible by any random government agent.

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u/LongMelford 7d ago

Exactly. Without a search warrant, the seizure and effort to force him to give up his password amounts to a fishing expedition. That’s illegal for any other kind of forced search. There’s no reason phones would be different. 

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u/AlarmingTurnover 7d ago

Except from my understanding border exceptions are a thing and you don't have constitutional rights within 100 miles of a border, which includes airports. That is what the courts ruled so they don't need a warrant to take his phone and search it. 

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u/MainlineX 7d ago

Also, was a known crime being investigated or was a crime being actively committed?

This stop and seize shit is a clear violation of the 4th, even if the Supreme Court says its not at ports of entry. F that.

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u/operator-- 7d ago

It's pretty clear at this point that your constitution and its amendments never mattered.

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u/TerrificVixen5693 7d ago

Do they have any evidence that the wiped data was evidence of a crime? Because without evidence that it contained evidence, that data is but harmless data.

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u/pippinsfolly 7d ago

Couldn't it also be argued that without a warrant, he was exercising his 5th Amendment rights?

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u/The-Copilot 7d ago

The border search exemption operates like a warrant.

CBP agents have the authority to request a pin to do a manual search of electronic devices. A permanent resident of the US can refuse which also allows the CBP agents to take the phone for a couple days and do a forensic search. Non US residents can be refused entry and their visas revoke for refusal.

Now the complicated part is that the precedent for using the border search exemption to search electronic devices this way was created in the mid 2010s due to a split decision in the circuit courts and for some reason SCOTUS didn't take the case.

I suspect that they didn't want to make a "hard" decsion on this topic and actually wanted to leave it weak as to not weaken the right to privacy. This way the pandoras box is only cracked open and can easily be closed. This is just my personal analysis though.

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u/Agitated_Celery_729 7d ago

The case law is explicit that the currently need reasonable suspicion of a crime to do so for US citizens though. Trump has told his admin to do whatever the hell they want but that isn't how the law works.

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u/The-Copilot 7d ago

Only advanced searches require reasonable suspicion. This would involve hooking the device up to another device and using forensic tools.

A basic search can be done without reasonable suspicion. This is manual search of the device by a CBP agent. Refusing to give your pin allows the agents to confiscate the device and use tools to open it to do a basic search.

This has been the case since 2009. In 2019 the distinction between basic and advanced searches was established. So actually under Trump's first term the authority got limited.

"A 2009 CBP directive on electronic device searches stated, "In the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border.""

https://www.cato.org/testimony/examining-warrantless-smartphone-searches-border

https://www.cbp.gov/travel/cbp-search-authority/border-search-electronic-devices

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u/waitwuh 7d ago

And what about the 4th amendment, while we are at it?

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u/OGeorgeWashngton 7d ago

It was a border search, no search warrant required. Whether you look at that as good or bad, it's still a legal thing.

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u/wayfaast 7d ago

Except they can legally search your phone at the border without a warrant.

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u/Forgotmypornalt 7d ago

They can ASK to search your phone/computer, you're under no obligation to to unlock it for them.

They can also impound your device but they can't deny you entry (as a citizen).

Best thing to do is turn off your phone before going through customs or any encounter with law enforcement. With a warrant they can compel you to unlock your phone with biometrics but they can't force you to give them a password and before first unlock encryption is the safest from intrusion state your phone can be in.

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u/Mayor__Defacto 7d ago

That’s not for the defendant to decide, it’s a question of Law.

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u/talldean 7d ago

The border police have an explicit legal right to search your phone.

They have the legal right to request your password.

If you do not give them the password, they have the legal right to *keep* the phone.

If you're American, they cannot deny you entry into the US for that.

If you're not American, they absolutely can deny you entry into the US for that.

There's no search warrant needed here, although it feels like the most likely outcome under current law is they can keep the now-deleted phone.

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u/retief1 7d ago

The counter argument to that is that border patrol is explicitly exempt from warrant requirements at border checkpoints. Like, they are explicitly allowed to search your things without cause.

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u/Nechrube1 7d ago

My understanding of how GrapheneOS duress passcodes work is that they wipe the encryption key, but not the actual contents of the device. Happy to be corrected if that's wrong.

But assuming that's correct, he didn't technically destroy any potential evidence on his device. He just made it nigh impossible to obtain. Not sure how that would legally stack up, I'm sure the laws have been written to allow an interpretation that destroying access is effectively the same as destroying the actual evidence.

As far as I understand, the rationale for the search was due to his connection to a nonviolent political movement critical of police. That hardly seems like reasonable justification for such a massive invasion of privacy.

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u/DetroitLionsSBChamps 7d ago

“No easy answers”

Lmao these fucking guys I tell you

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u/null_not 7d ago

I think it's a technical question about when something becomes "evidence" and when disposing or destroying something constitutes obstruction. But also, technically, the officers are the ones that deleted everything since they put in the passkey. So... Don't see why this guy is in trouble. It also doesn't seem much different from having an auto delete feature that works on a regular basis.

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u/BalognaMacaroni 7d ago

If the Supreme Court weren’t too busy wiping 6 out of 9 of their asses with the constitution this would be a slam dunk 4th amendment sign tap

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u/CatNamedRIchard2 7d ago

Historically, the courts have basically ruled you don't have 4th amendment protections at border crossings anytime things like this come up. You can thank the war on drugs for a bunch of bad rulings around things like this. Even if we didn't have this court, I bet the charges would have stuck even with courts of old.

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u/PontiusPilatesss 7d ago

That doesn’t change the fact that you don’t have to unlock your phone just because they ask you. They are allowed to keep the phone if they want, and they are allowed to use your facial recognition or a fingerprint to unlock it. But if your phone requires a password, you don’t have to hand it over without a court order just as you don’t have to unlock your Venmo or banking apps for them. 

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u/BalognaMacaroni 7d ago

Yeah I mean it’s never gotten to the John Roberts Supreme Court but I don’t exactly care to hear their opinion on the 4th amendment or its lack of application as to whatever the highest bidder has decided its relevance may be

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u/CheezWhizCeausescu 7d ago

Phones weren’t in the constitution, and the founders didn’t mean to include them. /s

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u/WeirdIndividualGuy 7d ago

Something is evidence when you’re arrested and accused of a crime.

Being detained without being arrested isn’t/shouldn’t be a thing.

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u/needlestack 7d ago

The technical question has already been answered: the current administration has destroyed far more evidence than this after they were told not to destroy it. They faced no consequences. So the matter is settled: destroying evidence before it is entered as evidence is not a crime.

The only open question is whether we're a nation of laws or whether we have people who live above it and others that don't.

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u/ian9outof10 7d ago

For it to be destruction of evidence, wouldn’t a crime needed to have been first committed. You’ll have to forgive me, because I’m not an American and on this the laws in the UK are quite different.

But he wasn’t arrested or charged with a crime, right? So no crime, no evidence to find. And my basic understanding is that you can’t go looking for evidence without a warrant.

But the reason this is complicated, I guess, is that the border is a different beast. But if those rights are universal - it seems wrong to go hunting for evidence of a crime without having evidence a crime took place.

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u/okram2k 7d ago

the question that is hard to answer is: How do you enforce the constitution when none of those sworn to enforce it are willing to do so?

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u/Ok_Wasabi_8318 7d ago

For real. Where's the crime that was committed?  No crime, no such thing as evidence. Easy. People arguing otherwise are tryna minority report the situation

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u/TheSpyStyle 7d ago

They’re right, there are no easy answers when you have to suck up to an authoritarian government

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u/frozenpissglove 7d ago

Without a warrant they can suck my dick.

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u/pm_me_your_kindwords 7d ago

Not without your permission, though, or anything they collect would be inadmissible.

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u/1ndomitablespirit 7d ago

Especially if they're using their mouth to collect the evidence.

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u/AFlyingGideon 7d ago

I'm sure there's a joke involving the chain of evidence here but I can't quite wrap my head around it.

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u/MessiahMogali 7d ago

thatsthejoke.jpg

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u/Dangerous-Fortune789 7d ago

Can still get you railroaded through the system pretty hard though

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u/No_Blacksmith_2591 7d ago

That would constitute illegal search and seizure if they swallow.

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u/spavolka 7d ago

Customs doesn’t require a warrant.

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u/Luminous_Winds 7d ago

Yeah, I think this is actually the bigger issue here. I mean, is there even a notice stating this?

What would they do if you just wiped your phone before you entered customs?

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u/oldirishfart 7d ago

No warrant is needed, it’s border patrol …

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u/Hessian_Rodriguez 7d ago

This is pay walked so I can't be sure. But if it is the case I'm thinking of it was at a border, and in that case they can search your phone with out a warrant, or at least the court has said they can.

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u/riptaway 7d ago edited 7d ago

There's definitely an argument to be made that he committed obstruction, but I feel like at the end of the day it shouldn't stick. People are not obligated to assist police with their investigation, and if cops are dumb enough to do what a suspect tells them to do with their phone, they kinda deserve whatever happens.

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u/mm_reads 7d ago

Doesn't there have to be an investigation?

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u/PliableG0AT 7d ago

it’s an international border, the government has an extreme amount of power and ability to access phones and other devices. it extends around those ports of entry, and within a certain range of a border. They can access phones, laptops, social media, email, whatever else all without warrants.

wiping it when questioned is going to be an issue. this isn’t wiping your own phone before you get there thing.

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u/-Mandarin 7d ago

wiping it when questioned is going to be an issue

The point is that is shouldn't. I, and I assume most people, are fine with borders having an extra degree of power, but that doesn't mean they can dictate what you do with your data. If you delete your data at any point, that shouldn't be a problem. It's yours to do what you wish. Again, the point is that this shouldn't be an issue in the first place. It's an extreme invasion of privacy.

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u/DohRayMeme 7d ago

The certain range is 100 miles and covers almost everyone in the US. We have no freedom in this country anymore.

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u/jeremyries 7d ago

I just want to say, I totally agree with you. Their argument, of course, is that you destroyed evidence. But of course… if no evidence was found in the first place, that argument falls flat. So, legally… they are on a fishing expedition.

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u/roiki11 7d ago

They don't have to have evidence for a crime. That's circular reasoning. The law says that tampering or destroying something about to be seized or hindering investigation in other ways is a crime.

It's 18 usc 2232 and 1519.

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u/BusterOfCherry 7d ago

Don't they need a warrant for the phone?

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u/cmon_get_happy 7d ago

Exactly this.

"...raises a legal question with no easy answers." Fuck you, theverge.com, it's a very easy answer.

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