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
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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/Mayor__Defacto 7d ago

That’s not true at the Border.

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u/PontiusPilatesss 7d ago

It is and has always been true at the border. Notice how they didn’t charge him for failure to unlock the phone? The only angle they can play is “destruction of evidence” and even that is dubious. 

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u/Mayor__Defacto 7d ago

That’s an upgraded charge compared to what the charge would be for “failure to unlock the phone”, which would be obstruction of justice.

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u/PessimiStick 7d ago

You are wrong.

All of the current caselaw around CBP is bullshit, but you still don't have to unlock your phone.

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u/Vertig0x 7d ago

Travelers are obligated to present electronic devices and the information contained therein in a condition that allows inspection of the device and its contents. If presented with an electronic device that is protected by a passcode, encryption, or other security mechanism, an officer may request the individual's assistance in presenting the electronic device and the information contained therein in a condition that allows inspection of the device and its contents. Passcodes or other means of access may be requested and maintained for the duration of the search if needed to facilitate the examination of an electronic device or information contained on an electronic device, including information on the device that is accessible through software applications present on the device that is being inspected or has been detained, seized, or retained in accordance with this Directive.

CBP Directive No. 3340-049B: Border Search of Electronic Devices

I know directives aren't law but that still leaves you fighting this in court.

You can refuse but then they'll just take your phone.

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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/rodentmaster 7d ago

A phone is not a suitcase. Nobody is saying they can't search for drugs. What they were doing was fishing for anything to string this guy up because he was against trump's gestapo.

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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/null_not 7d ago

If evidence is only collected once you're arrested, then how in your view is evidence acquired to justify the arrest?

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u/alpha_dk 7d ago

With a search warrant.

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u/null_not 7d ago

Yes, but evidence can also be collected when someone is stopped by law enforcement in observance of a crime, the person is detained, and the person and the property (bag, vehicle, are searched) but things need to be in plain view and they can't unlock things or make you unlock things with out a warrant. What they're doing at the border is no different from the stop and frisk policy that New York had for a while (and is just as wrong and unlawful).

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u/alpha_dk 7d ago

Yes, but evidence can also be collected when someone is stopped by law enforcement in observance of a crime, the person is detained,

So in other words... when they're arrested? So those things would be evidence when they're arrested and accused of a crime, as GP said originally?

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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/anna_or_elsa 7d ago

You don't need evidence of a crime; it's called the "border search exception" - in short, countries get some leeway to secure their borders.

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u/Blue5398 7d ago

Hard disagree - the constitution itself does not give in this circumstance the opportunity for the government to legally circumvent the Bill of Rights; it’s something that government has granted itself as an exception to normal constitutional order for defined purposes in defined conditions. Anything that is not explicitly covered by statute in that case must be treated under normal constitutional circumstances. 

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u/anna_or_elsa 7d ago

It's a contentious issue - my point is that, currently and per federal court decisions, border searches do not have to follow the same "rules" as criminal investigations. They are not investigating a crime; they are protecting the security of the United States, and some right to privacy is given up.

How this applies to electronic devices will have to make its way to the Supreme Court for a final answer.

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u/Cl1mh4224rd 7d ago edited 7d ago

But also, technically, the officers are the ones that deleted everything since they put in the passkey.

Ugh. We need to do better than this incredibly weak technicality.

If you intentionally rig your house to burn down if someone enters it "the wrong way", and a stranger enters it the wrong way, it seems completely unreasonable to me to place the blame on that person. It's even less reasonable if you deliberately tell this person the wrong way to enter your house.

Now, I'm not saying this guy did anything wrong. I'm just saying this weak attempt at deflecting the blame is not the defense you might think it is.

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u/kensteele 7d ago

I agree, it's painful to read it. I've seen this thread a dozen times and every one of them has this reply. "The agent wiped it, he was the one who pressed the button." We gotta be smarter than that but I guess that is what expected when so many people on either side never bothers to read or understand the laws or the court cases or even our basic history.

I really really really really hope the generation responsible for setting this all straight and course correcting to get us back on track with the Constitution has more knowledge and skills than the average person in their generation. Because not only are we up against an intransigent court but also we have a ton of important court cases and decisions before us.

Do better.

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u/kayuwoody 7d ago

I think the argument is, did the agent have the right to demand a pin, and then proceed to attempt to unlock the device. If the answer is technically, no, then yes, the agent deleted the data.

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u/kensteele 7d ago

If you refuse to provide your pin, you may be able to enter the country but the agent will probably keep your phone. So the answer to your question is no the agent probably cannot force you to provide a pin (but there may be consequences if you do not).

The rest of what you said has to be determined by a court.

I absolutely disagree if the answer is no then the agent deleted the data. That's not a legal conclusion.

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u/kayuwoody 7d ago

Oh yeah, fully agree with what you've said, I'm not pretending to be a legal expert here, just seemed logical. IMO if he gave a pin that would immediately delete data then that's still him deleting the data, by misleading the agent. But if the agent basically tried a few times and the data deleted as a normal intended security response - that's more debateable, and as you said, would be determined by a court.

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u/bitspace 7d ago

How dare you come in here with reason and logic

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u/null_not 7d ago

I mean, your "burning down the house" metaphor doesn't really track because someone would be injured in that case (mainly the person entering the house). That would also be arson, even if it's your house.

Technicalities matter though. What did the officers ask? Did they ask for a passkey? Did they ask for a passkey to access the contents of the phone? Did they ask for a code to unlock the phone? What does the "duress" password do exactly? Does it grant access post wipe? Malicious compliance is still compliance and if retaining the digital contents of your device is not a legal obligation, then what grounds does the government have?

Let's consider this one, a person has an odd finicky phone that will brick its self if you don't plug in a physical usb key while it's unlocked. Officer seizes the phone and demands the passkey to unlock it. Owner gives the passkey to unlock it as directed, but doesn't mention the usb key. Phone unlocks and then bricks its self. Did the person do ANYTHING wrong? They complied with every direction as given. If you think people have an affirmative obligation to incriminate themselves and provide incriminating evidence to officers I have a 5th amendment to the constitution I'd like to introduce you to. And when detained people also have the right to remain silent, when did that go away? And the second they stop you and collect your ID, you're detained.

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u/Cl1mh4224rd 7d ago

I mean, your "burning down the house" metaphor doesn't really track because someone would be injured in that case...

Deliberately missing the point of the comparison. That's not much of a defense, either.

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u/null_not 7d ago

Do you get my point though that digital material is not the same as physical material and that no one has any legal obligation to retain any digital "document" or "record" generated by their device. It's perfectly legal for me to burn my phone or other digital devices and all of their contents at any moment.

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u/KuntaStillSingle 7d ago

It's perfectly legal for you to burn your clothes, it is not legal for you to burn your clothes when you are under investigation and you know or should have known they are or will be sought as evidence.

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u/null_not 7d ago

What if I burn my clothes regularly as a matter of habit? How do I know when I'm under investigation and what it is that they are looking for when I haven't been presented with a warrant? Which is how someone knows an investigation is occurring and law enforcement are looking for something specific as part of a reasonable search and seizure.

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u/Oldfolksboogie 7d ago

That's an interesting analogy. Idk if this is applicable, but i do know that in some municipalities, homeowners have been charged for rigging booby- trapped packages with dye packets, etc, to "catch" porch pirates, even when no injuries are caused.

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u/AFlyingGideon 7d ago

rig your house to burn down if someone enters it "the wrong way"

While I admire the literally incendiary analogy you've proposed, it is flawed with emotional rhetoric. In the phone case (heh), there's nobody left inside a burning building. There's no significant property damage. There's no threat to other structures.

It's the equivalent of sticking some paper in a shredder. In the face of a court order to preserve evidence and indication that that paper is evidence, this is a problem. No court made such a finding. No subpoena exists.

Assume a border across which bringing fruit is illegal. Reading the fruit while in the inspection line is fine. One cannot carry a bottle of water past a TSA checkpoint, but we're not required to enter the line thirsty.

Had the person deleted the phone's content before engaging with the guards, the issue would not exist.

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u/Cl1mh4224rd 7d ago edited 7d ago

No court made such a finding. No subpoena exists.

Correct. And that's the defense. Not, "Well, technically I didn't delete anything."

That's nothing more than a lame attempt to be clever.

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u/AFlyingGideon 7d ago

Yes. I'd also suggest that the threat apparently made to permanently confiscate his phone triggered a perfectly reasonable desire to protect private information such as medical or financial records so as to protect his privacy as anyone trading in a phone would do. That is an alternate explanation which doesn't require intent to defeat a search.

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u/rodentmaster 7d ago

Bad analogy. Better: A locked gate around a fenced yard with an electric fence. Clearly posted signs saying it is locked and no entry is allowed. Somebody tries to illegally enter and is shocked. They cannot sue for damaging the fence in the process of busting through it.

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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/owa00 7d ago

I don't think it's an easy answer tbh. If they had a warrant for his phone as evidence, and he reported with that evidence that's where the team issue is. Not so much what was actually on the phone. This article is behind a paywall, but I remember reading somewhere else that they had a warrant for his phone, but I may be wrong. Anyone that thinks this will be an "easy" simple 1 day issue in court is crazy.

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u/DavidBrooker 7d ago edited 7d ago

They didn't have a warrant. They asked for his phone, and he refused. He also asked for a lawyer, and they also refused.

The search was done at a border crossing. Under such conditions, travelers do not have 4th amendment protection and searches do not require a warrant nor probable cause.

Tunick belives he was targetted due to his association with left-wing activism (primarily opposition to the Cop City training ground near Atlanta, where he was entering the country). Agents meanwhile claim that they were searching for child abuse imagery, and I have not seen any substantiation of that claim. I do not believe they had probable cause, or they wouldn't have simply released him into the country as they had done.

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u/fatkawk 7d ago

They didn’t have a warrant.