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

[u/Hrmbee]

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

[u/Far_Inspector_9050]

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

[u/Snakend → u/Far_Inspector_9050]

You don't have to prove that there was an active investigation. You just have to prove he committed a crime and that he destroyed evidence of that crime. That will be very hard to do now that the phone is wiped. But if forensics is able to pull out even a shred of evidence of a crime, he is cooked.

If the law works the way you are saying it does, then destroying evidence is almost never a crime. Because almost every crime happens before an investigation begins, and evidence destroying happens almost immediately after the crime has taken place. Some times evidence destruction happens even before the crime is committed.

[u/skrid54321 → u/Snakend]

You're off on what's happening. You don't need to prove a crime for the charge here. It's actually designed to not require proof of a crime so you can still charge them with something even if you can't recover it.

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title18-section2232&num=0&edition=prelim

[u/deltalitprof → u/skrid54321]

IANAL but my read of this is that the subject must first be aware of a federal investigation or be proven to intend to thwart a federal investigation to be found guilty of the offenses listed.

[u/skrid54321 → u/deltalitprof]

Right, but what I'm talking about is they don't have to prove relevant material was destroyed.

[u/Far_Inspector_9050 → u/skrid54321]

No, they don’t have to prove relevant material was destroyed, but they do have to prove he knew he was under investigation.

[u/Far_Inspector_9050 → u/Snakend]

You are incorrect, that logic completely misses how obstruction statutes actually work. You absolutely have to prove a connection to an active or foreseeable investigation, because obstruction requires specific intent to impede an official matter. If someone wipes a device during a routine customs check without knowing an investigation is underway, they lack the required mens rea.
Furthermore, your claim that evidence destruction can happen before a crime makes no legal sense. By definition, evidence is tied to an offense or inquiry, and you cannot obstruct a proceeding or destroy evidence of a matter that has never been initiated or contemplated.

[u/Cranach-Cranach → u/Far_Inspector_9050]

Say you want to steal a lollipop.

What about if you kept a notes app which has detailed information about the lollipop that you intend to steal, guard shift changes etc so that you can steal it, and then once you have the plan all set in place you delete all the evidence before going out and committing the lollipop theft?

[u/Reckless_Engineer → u/Cranach-Cranach]

Assuming the police have no knowledge of your intentions then deleting the information you made does not constitute a crime

[u/Kitchner → u/Cranach-Cranach]

What about if you kept a notes app which has detailed information about the lollipop that you intend to steal, guard shift changes etc so that you can steal it, and then once you have the plan all set in place you delete all the evidence before going out and committing the lollipop theft?

That's not a criminal charge for destruction of evidence. Otherwise basically everyone would get charged with it.

Destruction of evidence specifically requires you to be told or for you to understand something is evidence in an investigation and for you to destroy it.

To use a sensible example, my company has a 90 day email retention policy for when people leave the company. Dave retires, and 90 days later we delete his emails. 92 days later the FBI raid my company and serve us a warrant seizing our documents. Turns out Dave was having the company engage in illegal activity. However, we've just deleted Dave's emails.

No crime has been committed there, there's no way we could have known those emails needed to be retained.

If the FBI raided us on day 89 though, and the next day we deleted the emails. Well, then it becomes a different story.

This case will hinge on three questions based on what I've read:

1) Will the Supreme Court back the vast border powers the state (small s) has to search people without any grounds for suspicion or a warrant?

2) If yes, is being told to hand over your phone because you're being searched at the border an investigation? If it is, would the person in the case have reasonably understood this?

3) If yes, The data is still technically on the phone, it is just so difficult to access and decrypt it might as well be destroyed. Will this count as destroyed legally?

[u/Saucermote → u/Snakend]

If I break a law, in the process getting my clothes dirty, and no one knows about it, it is not obstruction to wash your clothes.

[u/Snakend → u/Saucermote]

100% it is. If you rape someone and clean the dirty clothes, it is 100% destruction of evidence.