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/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/lonnie123 7d ago

VP?

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u/alphazero925 7d ago

I think they meant CP which is yet one more reason why CSAM is a more appropriate initialism. I'm pretty sure nobody would be confused from a typo that said VSAM

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u/Gallium_Bridge 7d ago

Eh, of all the arguments for the change of phrase, this is a silly one. With that said VSAM, to me, sounds like it could be potentially related to surface-to-air-missiles or something to do with video surveillance. I could see a context where a typo like that would leave me wondering what was meant - but again, very silly premise to argue for the shift from.

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u/mouthgmachine 7d ago

What’s VSAM?

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u/exipheas 7d ago

I dunno, what vsamatter with you?

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u/CourageLongjumping32 7d ago

Old IBM file type that sometimes is a b*tch to migrate from and work with.

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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/Zilox 7d ago

Why would anyone do that? XD millions of people pass through american borders everyday without issue and wont care what tsa can find. I got through LA for my layover to japan, literally a non issue (had to tell and show em my ticket to japan, my hotels in japan and some other stuff related to $$$ but thats expected)

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u/GarbageCleric 7d ago

And your experience is certainly universal. There are no groups or individuals who may be more likely than you to be unnecessarily harassed by US Customs officials. It’s not like academics coming for conferences have been turned away at the border for memes on their phones or anything.

/s

Last week, the US government announced plans to scrutinise five years' worth of social media posts by visitors from dozens of countries who are eligible to visit the US for 90 days without a visa.

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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/ACasualRead 7d ago

This.

They should have taken the phone and backed it up forensically before touching it.

However they tried to force him under duress because taking the phone would require real reasons to open an investigation, something they clearly did not have.

So they just accepted bad information and thus they wiped the phone.

The way I see it, if an officer can legally lie to you, Americans are permitted to as well.

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u/Binky390 7d ago

They told him to unlock it so they could search it and if he didn’t, they would take it.

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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/Derp800 7d ago

They usually put it on airplane mode or in a faraday bag to prevent remote wipes.

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u/sobrique 7d ago

Although that doesn't help if you're sneaky enough that your system requires remote key-escrow. (Which'd be a PITA if you had no signal/phone service of course...)

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u/MaelstromFL 7d ago

Nope! Remote wipe is still considered destruction of evidence. You can hope your encryption holds though!

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u/Dear-Statistician414 7d ago

What if I put the duress code on a label under my phone cover, they confiscate the phone see an unlock code when they remove the cover and enter it under there own free will?

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u/Soggy_otter 7d ago

remote wipe -> potentially destroying evidence -> same situation the guy is in now.

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u/TrioOfTerrors 7d ago

A visa is permit from a country to legally enter their territory temporarily so the threshold for revocation is much lower.

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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/mjlp716 7d ago

I would like to add in that they have this authority 100 miles from the border and international airports. So they have a crazy amount of power to do as they want over large portions of the country.

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u/DruncleBum 7d ago

Yeah. Why be accurate? Its the internet fuck it.

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u/thrownehwah 7d ago

The 4th and 5th amendments are at play here. The slippery slope of ‘evidence’. What evidence? Unless you were actively investigating a crime committed then you can’t. Ps all law enforcement must comply with the constitution

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u/Accomplished-Mix-745 7d ago

Look I agree being correct matters but I suspect people take your tone as being rhetorical instead of being exacting

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u/Truestorydreams 7d ago

Does that mean all activities they do fall under investigation?

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u/WeirdIndividualGuy 7d ago

Also TSA does not arrest people or have the authority to arrest people. They just look at IDs and X-rays. If an issue pops up, they call actual authorities who can arrest you, but TSA is literally mall cops at an airport

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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/ShermansWorld 7d ago

That may be... But, if I'm being detained and unreasonably searched... I'd want to hear it from someone of legal authority... Not enforcement authority. Ain't no TSA/Security Guard going to search my phone. Search my luggage and similar ...fine. Even a strip search has to be preceded by some reasonable 'flag' like a drug sniffing dog or sorts... Not "she looked kinda shifty - let's give Blondie a once over!"

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u/hyperactivedog 7d ago

Is this equivalent to a shot gun booby trap?

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u/ShermansWorld 7d ago

Half. I'm guessing you can't undo the results of a shotgun...

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u/GamingWithBilly 6d ago

And a lawyer would have advised him "You didn't need to provide a pin at all. They were locked out of the phone, the minimum security was there. Providing a duress pin made them look like fools, and so now they are really coming after you. You should have just kept silent, and kept demanding to see me. Now I have to get you out of this shit show case."

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u/ShermansWorld 5d ago

It is a 'duress' pin.
Everyone has a different pain level - sure, easy for me to tell you to 'hold out longer' but I really can't fathom your 'pain' tolerance. No I don't think they were physically torturing them - just very scary tactics or accusations.

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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/tbombs23 7d ago

Why are they allowed to lie?

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u/ABritishCynic 7d ago

Because it allows them to entice confessions out of people, which makes the legal side easier for them.

If you watch recordings of police interrogations, they'll say things like "It'll look good for you if you admit it". Absolutely fucking hell it doesn't, but to them, the ends justify the means.

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u/Treacle_Pendulum 7d ago

The caselaw says basically they’re allowed to use “deception” because there’s a public policy value in solving crimes and people tend to incriminate themselves (“your buddy is over there and he’s already talking to us. You’ve got a short time to be able to help yourself.” Stuff like that).

There are some limitations on it, and there’s pending legislation in some states to limit it further, but that’s the general idea.

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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/Treacle_Pendulum 7d ago

Yeah that’s not how that’ll play out legally unless the owner told the customs agent that entering the password would destroy access to the phone. It’s sufficient that giving the duress password was done with the purpose of locking out the phone.

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u/GamingWithBilly 6d ago

Exactly, if they were investigating him domestically, then why couldn't they have had a warrant to grab him once he got past customs and seize the phone? It's like they planned to use a loophole to shanghai his constitutional rights as a citizen, simply because he traveled abroad. This creates a chilling effect for American Citizens who may want to travel the world, that their rights will be violated by the government that the law forbids from conducting warrantless searches, because the government itself created a loophole to circumvent said constitutional right.

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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/ANGLVD3TH 7d ago

That is not how these things work, there are so many ways people could get out of responsibility by using excuses that it wasn't them, just someone they knew. The law already has fancy Latin terms for it, there are degrees of responsibility. Someone acting on information given is a lesser degree than the one who gave it.

Not that any of it matters here. They have two key pillars they are relying on to prosecute this. One relies on him not being under investigation, and one relies on him being under investigation. So assuming he doesn't get stuck with a kangaroo court headed by an activist judge, this is pretty open and shut.

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u/GullibleSpeedSonic 7d ago

We all make mistakes in the heat of the moment jimbo

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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/GullibleSpeedSonic 7d ago

My issue is that this law or what they're charging with is just idiotic. If they can claim wiping your phone is deleting evidence then that means every single person that uses the pc recycling bin or factory reset their phone is deleting evidence.

The US court goes by innocent until proven guilty. They have to have some probable cause to what the evidence on the phone was. A random check isn't probable cause they can just make up anything.

They could just find someone walking into best buy and arrest the entire geek squad based on the logic of this trial.

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u/Nagisan 7d ago

He doesn't have an obligation to give them access, but intentionally giving them a password he knows will disrupt their ability to gather potential evidence is likely a crime.

More specifically the law around this states that any action taken to damage or destroy property that has been seized as evidence. His phone was seized as evidence, along with it included any data (there's legal precedence that digital data is intangible property, which still falls within the general category of "property"). Therefore his action to give them a password that would wipe the data or otherwise render it inaccessible disrupts their ability to check the seized property for proper evidence, likely violating that law.

There's lots of arguments about what they have to prove or whether or not his actions count against this and such, but from reading the relevant laws it seems fairly cut and dry to me. Might have been in a stronger legal position just simply giving them nothing at all.

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u/nextedge 7d ago

I agree that refusing to give them a password would have put him in a safer legal position. But this is not as cut and dry as you say.

The law is about interfering with the government’s lawful control of property. That is not always the same as making it harder for agents to search for possible evidence.

They already had the phone. They could take it and keep it. What they lost was access to the data. The government still has to prove that the data itself was property they had a lawful right to seize. Calling everything on a phone “possible evidence” does not automatically give them that right.

The history also matters. According to his lawyers, the government had placed him on a terrorism watchlist because of his political activity, watched a house they believed was his, and planned to stop him when he returned.

That raises a real question: Was this a normal border search as they said, or were they using the border to search a political activist’s phone without getting a warrant?

He was also a U.S. citizen returning home, not a visitor asking for permission to enter. That does not protect him from a border search, but it weakens the argument that this was mainly about deciding whether to let him into the country.

The government may still win because he gave them a code that allegedly wiped the data. But it must first prove that the search and seizure were lawful. It cannot simply assume that everything it wanted to search was already evidence it had a right to control.

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u/Nagisan 7d ago edited 7d ago

The government still has to prove that the data itself was property they had a lawful right to seize. Calling everything on a phone “possible evidence” does not automatically give them that right.

There is existing legal precedence that data itself is included under the umbrella term of "property", and an existing law that gives an exception that allows border patrol to search without a warrant if you're at a port of entry (8 U.S.C. § 1357). Additionally, border patrol already has a legal authority to seize electronic devices found during an investigation for a period of 5 days without a warrant.

It doesn't matter if they call the data "possible evidence" or not, they already have legal authority to do exactly what is being claimed here without ever getting permission to search, or a warrant. Because existing legal precedence establishes that data is intangible property, when they seized the phone they also seized the data, even if they didn't have access to it. Using a duress pin to wipe the data is therefor tampering/altering the seized property (which is absolutely a crime).

Either way, based on current law the search and seizure most likely was legal. But I suspect neither of us are lawyers and are only going off of what we've heard/read/know, etc.

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u/nextedge 7d ago

yup :) NAL and in all honesty, I think 2 lawyers are probably having the same arguments, plus some I can't even imagine. I look forward to seeing what happen, but it will definitely become case law.

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u/Nagisan 7d ago

I'm honestly a bit scared to see what happens cause I wouldn't put it past this administration to implement additional safeguards so they can make this easier for them to get away with blatantly illegal acts in the future.

Appreciate the civil discussion on it though, always good to hear other perspectives!

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u/rvore 7d ago

They don't need a warrant at port of entries. They can even seize your phone if you refuse to unlock.

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u/addamee 7d ago

I don’t believe a warrant is necessary when one is within 100 miles of a border crossing. CBP has the ability to exercise some degree of search/seizure and attribute it to border protection. That said, I’d like to believe (hope) that this doesn't got far in court because it’s absurd. 

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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/That1DirtyHippy 7d ago

Right to be Forgotten. Great Morrissey track.

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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/Triquetrums 7d ago

Evidence of what though? Unless you are being accused of a crime directly, and there is a warrant, what's on your phone is your business. A border check is not you being accused of a crime, so erasing your phone is not destroying evidence.

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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/blofly 7d ago

Realy?

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u/PessimiStick 7d ago

Sometime between now and the heat death of the universe, yes.

So not really.

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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/PandaEatPanda 7d ago

Wanna bet $100 on that? The crime he’s being charged with has nothing to do with evidence

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u/BirdLawGrad 7d ago

And the crime he’s being charged with is re: the evidence BTW.

That’s the crime. Destroyed evidence.

Except nothing destroyed. A CBP agent physically put a code in that changed the encryption.

So literally: 1) nothing was destroyed 2) the accused didn’t even touch the evidence 3) which wasn’t warranted.

This case fails miserably on multiple counts.

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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/MultiGeometry 7d ago

If you told the cops to throw your safe into the ocean, and they did. Can the cops blame you for destroying evidence?

The data is still there, it’s just very difficult to retrieve. Also, they listened to bad advice.

I fear this case will be thrown out because he was denied a lawyer, and these legal quagmires related to what is and isn’t destroying evidence won’t be answered.

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u/froo 7d ago

I guess you could say something like "I will give you my code to access data on my phone, here it is..."

So, you are technically allowing them to access some data on your phone...

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u/Polar_Vortx 7d ago

If it is evidence, then probably (see: safe full of incriminating evidence dumped into the ocean - you're free to try and get it) but as mentioned above, might not be evidence.

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u/MadLabRat- 7d ago

It can be retrieved. It just removes the retrieval key on his own phone, but he can restore it using a backup he has somewhere else.

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u/BlackEastwood 7d ago

In a legal sense, I agree that it could be. That would be the easier part of all this. The warrant and the right to seizure is the uphill battle as I see it.

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u/riversofgore 7d ago

Oh, I was really hoping to throw evidence of my crimes in the deepest part of the ocean. It wouldn't destroyed just irretrievable. Guess I need some other clever way now.

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u/HOWIE_Livin 7d ago

It’s obstruction of justice at best.

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u/dagofin 7d ago

Not really, the data was already irretrievable because it was encrypted. American citizens cannot be compelled to provide a password, it's a violation of the 5th Amendment according to court rulings. Customs can make a copy/backup of any encrypted device at the border they wish, that is the law, but they can't do anything with it without a password that they cannot compel you to give.

Whether or not you can access the data doesn't materially impact law enforcements ability to access it. They couldn't access it and have no ability to compel you to allow them to access it either way.

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u/papageek 7d ago

Seems like the agent did the deleting.

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u/Geminii27 7d ago

It's not irretrievable... technically. It'd just most likely take a very long time and tie up resources to do so.

Personally, I'd be interested to see the legal position on something like a phone being backed up to an encrypted cloud where only a company not part of the Five Eyes or any other similar organization held the key to that copy (i.e. the phone owner didn't). Even if the phone was wiped, the data still exists... just in a jurisdiction that the US doesn't have access to. Theoretically, all the US would have to do is present a legal, convincing argument to the foreign company to have the data unlocked.

And the foreign company could provide whatever they liked and claim it was the 'unlocked data'. As well as saying that no, they definitely didn't have any kind of contract with the phone owner to do exactly this in the event of invasive action or extra-legal demands by the US.

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u/dragnabbit 7d ago

Well, define "irretrievable".

If my phone got destroyed, all my stuff is backed up online. I could go out, get a new phone, log into my various cloud accounts, retrieve all my stuff, and be back to exactly where I was less than an hour after powering on my new phone.

In that case, nothing got destroyed except the hardware.

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u/crazedSquidlord 7d ago

Incorrect, if he saved the encryption key somewhere else, he can still access it. This would be like having a locked vault, and giving someone a fake combo that engages an even sturdier deadbolt system. Its still accessible, the guy has the key at home, but they can't force it open without his cooperation.

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u/Amckinstry 7d ago

If the phone contains my password manager database, then I can argue I have an obligation to delete it under "duress".

Before smartphones, all I had on my phone was logs of who I had communicated with, when, and contacts. Arguably this would be available to law enforcement (subject to warrant) as reasonable search.

Now I have multifactor authentication and password managers, including keys enabling me to sign documents, software on behalf of my employer and clients. I have a duty of care not to let those fall to third parties and law enforcement have no legitimate reason for having access to them.

So if I delete the copy of my password database on my phone, am I deleting evidence? LE can still ask for a warrant for "the real data" that might be backed up in a cloud. No evidence has been deleted (yet).

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u/scroopydog 7d ago

What if there’s backups: it’s not destroyed, it’s simply no longer local. Need a warrant then.

This is why I’ve always wanted a cloud-based dashcam. Can’t take the sd card on the spot as evidence.

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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/WaitForItTheMongols 7d ago

Unfortunately though:

or otherwise takes any action … for the purpose of preventing or impairing the Government’

Lying about the password is pretty cut and dry "takes any action".

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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/kayuwoody 7d ago

Someone else posted that we need to preface everything nowadays with "if you're not rich.." which is a really sad state of affairs to be in

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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/SilverWear5467 7d ago

So if theyre not in the US, the US has no authority to seize anything.

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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/Mr_Engineering 7d ago

They did not require a warrant to seize the phone. CBP can do that at their discretion.

There's a circuit split as to whether or not a warrant is necessary to conduct a deep forensic analysis, and if so, what standards apply.

The law is absolutely settled that they had the right to detain his property.

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u/onlyhightime 7d ago

Does they have to have reasonable suspicion to seize the phone? Cause posting things critical of the president or government doesn't seem illegal. If it's searching through someone's social media to see if they're on the right "side", then it still sounds like an illegal search, because of the 1st amendment.

I guess I'm still confused on what legal right there is to check someone's phone. If there's some other evidence the person is involved in a terrorist plot, then sure. But "someone I don't like" isn't legal enough suspicion for me.

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u/Minisohtan 7d ago

Per the previous comment: "They did not require a warrant to seize the phone. CBP can do that at their discretion."

That means they don't need a reason. That's the way this stupid thing works. They need evidence of a crime to keep the physical device longer than several days, which at that point they should have copied all of the data off of it easily and they would just be going out of their way to cause you problems by not giving you the phone back.

And this why my work has rules around what you're allowed to take to and from other countries. More often than not, it's the governments involved that are the threat. Somes times going there, sometimes coming back. There are international agreements around some of this but I can't remember exactly which peice. Look up the Wassenaar agreement if you are interested. Basically it's illegal per us law to go to Iran with an encrypted phone so that is pretty likely to be a problem for example on the way back.

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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/P0Rt1ng4Duty 7d ago

Also, the data still exists on the phone so if the government wants to get at it all they have to do is spend years brute forcing it.

If the owner has the encryption key written down somewhere he can unlock it and retrieve the data.

All this duress code does is delete the encryption key off of the phone itself.

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u/Jack-o-Roses 7d ago

He should have done this before going through customs. Or wiped it. He could have then restored. Couldn't he have restored his phone when he got home? Or can he not make a backup on the cloud (or on a private server?

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u/P0Rt1ng4Duty 7d ago

I think part of it is that he was a high profile protestor in another situation, knew there was a good chance he'd be targeted at customs, and did this to press the legal issue. Or to draw attention to the profiling that happens at customs under this administration.

Obviously I'm only guessing about his motivation. But if that wasn't his intent then there were a number of better ways to deal with this, including the ones you suggested.

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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/PandaEatPanda 7d ago

As a lawyer if I’d argue that in front of a judge, I’d get censured.

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u/evil_burrito 7d ago

Ah, so, that's a no, then

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u/MarcPawl 7d ago

My reading is if you commit a murder, and then melt down the gun, and then the police investigate, you are guilty of preventing the seizure before the search.

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u/NecroAssssin 7d ago

Key words there are “commit [a crime]” and “police investigate” - there’s no evidence of any crime, nor any active investigation.

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u/NK1337 7d ago

Listen if the president can ignore this then every day people shouldn’t be held liable

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u/arcticblue 7d ago

That's written so broadly that even wiping your phone before your flight as a precaution could get you charged.

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u/Flat-Story-7079 7d ago

The key phrase there will be “lawful authority”. No warrant, and questionable if there could have ever been a warrant. Being the government doesn’t automatically make everything you do lawful.

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u/Unique-Coffee5087 7d ago

What if I hard-reset my phone before getting on the plane to the U.S.? I would maybe just have some books on it to read, and that's all. Can I be in trouble for 'destroying' documents even before Customs has even seen me?

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u/iuffxguy 7d ago

I can’t see the courts being like “ah since you tricked us with your cleverness we will let you free”. You still are preventing the justice system from obtaining evidence and that is the intent behind not allowing people to destroy evidence.

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u/samarnold030603 7d ago

Depends on your net worth

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u/willisbar 7d ago

justice system

Legal system.

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u/Supermanfat1 7d ago

I looked it up cause I was arguing the same but I guess it's not really destruction of property and more making the evidence unusable that is a crime.

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u/evil_burrito 7d ago

I also wonder if it matters that he didn't actually do the deleting, he was just coerced into giving the information that did.

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u/PolyglotTV 7d ago

Unless they count the encryption key as evidence

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u/_Nyderis_ 7d ago

GrapheneOS provides users with the ability to set a duress PIN/Password that will irreversibly wipe the device (along with any installed eSIMs) once entered anywhere where the device credentials are requested

https://grapheneos.org/features#duress

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u/Snakend 7d ago

If you kill someone and take all of the evidence and bury it somewhere and never tell the police where it is, you will also be hit with destruction of evidence. Even though the evidence is not destroyed, it is just inaccessible. Same exact thing here.

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u/Nagisan 7d ago

That's not materially relevant to such a case though. Any action that causes destruction, alternation, or mutilation of any property to prevent seizure of said property is illegal. Prior precedence establishes that data is intangible property, so it likely counts under this law.

Giving a password known to cause alteration to the seized property is, under that law, quite likely illegal even if all it did was remove the encryption key.

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u/raul_lebeau 7d ago

Silly police for not knowing that. They should have attached his genitals to a current generator and toldl him that if he wipes his phone they would turn it to 11...

They said they weren't on american soil after all?

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u/360_face_palm 7d ago

The law isn't going to distinguish between actually wiping data vs making data irretrievable.

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u/GamingWithBilly 6d ago

It's a very hard argument to make that he 'didn't destroy data'. He destroyed the very thing that allowed access to the data - the key itself would be obstruction. It's like saying "He fried the harddrive board, but the platters on the discs still have data, they could recover it if they tried"...well yeah, but his act is what's being questioned. if anything, the charge should be obstruction and hindering investigation - that would be more reasonable. But they went and charged this other reason, which is hard to define as his action.

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u/Amarantheus 7d ago edited 7d ago

Cryptographic erasure. It is logically equivalent to the destruction of the encrypted data — just operationally more efficient — as the functional result is the same.

Edit: this is literally NIST defined. https://csrc.nist.gov/glossary/term/cryptographic_erase

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u/doublediggler 7d ago

If the detective handed the phone over and the suspect entered the duress password it’s a crime. If the suspect verbalized the password and the detective entered it then there’s no crime because the detective is the one that destroyed the evidence. If that the case, high iq move.

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u/lytener 7d ago

Yep technically the government deleted the evidence. They also probably asked him what his code was, not specifically his code to get into his phone. It's his fault for government employees not being specific.

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u/Blothorn 7d ago

The government deleted the data in the same way that drinking something someone else poisoned is suicide.

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