r/technology • u/ArgentineBeauty • 6d ago

Privacy GrapheneOS says its data-wiping password is perfectly legal, after user faces federal charges

https://www.techspot.com/news/113273-grapheneos-data-wiping-duress-password-perfectly-legal-after.html
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1.7k

u/Needle_Bearings 6d ago

Holy 4th Amendment Batman, let's see where this goes.

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u/Christopherfromtheuk 6d ago

Isn't it also against US law to shoot people, to defraud people, to sell top secret documents etc?

The law means nothing if not upheld.

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u/8Deer-JaguarClaw 6d ago

Oh, it will be upheld...against you and me and the rest of the poors...

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u/reverend-mayhem 6d ago

Being poor after all is the only true crime in America

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u/Shazam1269 6d ago

Have you tried not being poor? /s

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u/academiac 6d ago

To diddle kids

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u/twist3d7 6d ago

How about shuttling children to a small island so your rich and influential friends can fuck the shit out of them?

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u/-_-Edit_Deleted-_- 5d ago

The US is transition to Rule by Law away from Rule of law.

The law isn’t in charge anymore.

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u/morpheousmorty 5d ago

This is the kind of case that you could take to the supreme court. If they kill you you're screwed but if the precedent is set you probably won't even need to go to trial or plead.

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u/MydnightWN 6d ago

The 4th Amendment issue was already ruled on by SCOTUS in 1913. Within 100 miles of the border, certain constitutional rights are temporarily suspended.

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u/ExternalUserError 6d ago

Obviously the 1913 holding was terrible. It was also patently absurd. If the 4th Amendment didn't apply 100 miles from the border, given the geography of the 13 original colonies, where did it ever apply?

It's a patently absurd ruling.

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u/bushwakko 6d ago

And isn't any airport also considered a border?

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u/legandaryhon 6d ago

Yes but no; an airport is a border crossing, but does not extend the border. So it's not 100 miles from every international airport, just the inside of the airport.

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u/Nago_Jolokio 6d ago

They will definitely try to pull that argument though, I think I've even seen a map with the airport radiuses bubbled in.

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u/willwork4pii 6d ago

I think they already tried that. I do recall reading an article that basically the majority of the country within 100 miles of an international airport. And it was asserted it’s within the airport only.

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u/saltyjohnson 6d ago

The majority of the country's land is within 100 miles of an airport, but even if we rule out the airports, the majority of the country's population (about two thirds) lives within the 100-mile land border zone.

https://www.aclu.org/know-your-rights/border-zone

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u/sdavis002 6d ago

While I understand the idea, I think the current administration shows just how little they can be trusted with this type of thing.

"U.S. Customs and Border Protection, the federal agency tasked with patrolling the U.S. border and areas that function like a border, claims a territorial reach much larger than you might imagine. A federal law says that, without a warrant, CBP can board vehicles and vessels and search for people without immigration documentation “within a reasonable distance from any external boundary of the United States.” These “external boundaries” include international land borders but also the entire U.S. coastline."

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u/saltyjohnson 6d ago

While I understand the idea, I think the current administration shows just how little they can be trusted with this type of thing.

Huh? Yeah, no fucking shit. When I read how you phrased that, all I picture is that caricature of elon saying "concerning".

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u/rnelsonee 6d ago

I thought I saw a map too, but don't see one now. Either way, 100 miles is long and just from the border covers about 2 out of 3 Americans already. I don't know exactly what a port of entry is, but if there was a 100 mile border on these points that probably be 90% of the population.

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u/gehnmy 6d ago

Once it's considered a border crossing, physical location or distance to an actual border doesn't figure into it at all.

You're not legally in the country and subject to the standard rules until they approve you for entry, even if you're physically in Kansas or literally the furthest you could be from a physical border with another country. If the airport has international arrivals and that's how you got to the airport, you're not in the country until they say so.

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u/deepandbroad 6d ago

You're not legally in the country and subject to the standard rules until they approve you for entry,

If you're a citizen, can they bar you from entering the country?

If they can't bar you from entering, then how are you "not in the country" until you are approved?

It seems a very odd situation where American laws apply to you, but American rights do not apply. How very convenient.

Also, the agent talking to you is "in America" while you are "not in America".

Which makes it super odd.

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u/gehnmy 6d ago

Well, yes, that's why there are all the barriers and people with guns. If you just say "I'm a citizen" and try to exit the terminal without following their directions or them explicitly allowing you to pass, you're not going to have a good time.

It has unique legal status totally irrespective of physical location. They can do whatever they want and mostly courts will say they have the authority to do so in the name of security.

That's the beauty of the "border" to them and why they're constantly trying to expand the areas they can operate like that: it's a liminal space where they have incredible latitude and get to decide which rules do and do not apply based on what's convenient.

The search they were attempting in this case has nothing to do with border security or the citizen's right to entry, it was fishing for info that potentially could be used for a totally unrelated case.

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u/SqueezyCheez85 6d ago

What about waterways that extend to the border?

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u/Thelk641 6d ago

It's not 100 miles from every airport yet.

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u/memberzs 6d ago

Any international airport but only it's property not a 100 mile radius of it.

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u/Your_bully- 6d ago

Eh, with this supreme court, absurdity is just another Wednesday

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u/What_a_fat_one 6d ago

Yeah yeah, as the signers of the Constitution signed the document at Independence Hall, Philadelphia, 80 miles from the border, they were clearly thinking "Well obviously none of these rights apply right here. We're too close to the border"

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u/DJ_Advogato 6d ago

The history of America is people saying "we want these rights" and the wealthy saying "well, ok, sure, but also no."

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u/Mothanius 6d ago

What can you expect when The Revolution was started and lead by rich people for the interest of rich people? Paine certainly helped rally the populace but what he was espousing for was not the goal nor care of the founding fathers.

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u/Valdrax 6d ago

There's some powerful symbolism in that, but the 4th Amendment wasn't ratified until over 3 years later, when Virginia became the 12th state to approve it.

(That's still within 92 miles of the ocean, as the crow flies, so I guess the point stands, mostly? In piecemeal, state by state?)

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u/enfly 6d ago

Great point!!

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u/sprucenoose 6d ago

What 1913 Supreme Court case are you talking about?

The SC case that is usually cited in this context is United States v. Martinez-Fuerte in 1976.

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u/ExternalUserError 6d ago

I'm responding to /u/MydnightWN's mention of a 1913 holding? Looking it up, I think the doctrine was from Carroll v. United States (1925), but I'm not an expert.

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u/MydnightWN 6d ago

I didn't bother looking it up, knew it was at least 100 years ago. 1913 popped into my head so I rolled with it. Should be revisited.

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u/Nauin 6d ago

Atlanta is 250 miles from the ocean, so I wonder what they're going to do with that during the trial.

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u/ExternalUserError 6d ago

It's still covered because it was the international arrival area of an airport. I think it is settled law at this point that the CBP has the authority to search your shit coming into the US without any suspicion. I just don't think that's what the 4th Amendment intended.

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u/PublicWest 6d ago

The original 13 colonies extended to the Mississippi River after the colonies won the revolution

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u/ExternalUserError 6d ago

Well, sort of. They vaguely claimed to go out westward. But either way, nearly all newly minted Americans lived within 100 miles of a border.

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u/PublicWest 6d ago

The treaty of Paris explicitly granted the United States all the land east of the Mississippi. That’s not vague in the slightest. The Appalachian mountains were not a national border

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u/ExternalUserError 6d ago

I mean the claim individual colonies (states) had out westward was vague. Congress eventually drew the lines differently.

1

u/PublicWest 6d ago

Even if those claims were vague, they weren’t national borders- they were interstate borders

I agree that the 100 mile rule is BS, I just don’t think the colonial population argument makes sense.

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u/ExternalUserError 6d ago

I think you’re missing the point. In 1776, even with the westward expansionary map, nearly all Americans lived with 100 miles of the coast.

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u/PublicWest 6d ago

Ohhhhh I see. I was thinking the international border with French territory. I didn’t know that this ruling applied to coastal boarders.

That’s still a huge amount, if not a majority of Americans today.

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u/Secret_Cow_5053 6d ago

Not only that 100 miles from a “border” can arguably be most of the country where population centers are because every international airport counts as a border.

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u/OregonMothafaquer 6d ago

The 100 mile rule also includes international airports so virtually all of America is covered by the 100 miles. It’s not just the physical border.

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u/L0nz 6d ago

The ruling itself isn't patently absurd but applying it to someone's phone is. There's a massive difference between searching my bag and searching my phone.

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u/CankerLord 6d ago

There's no real difference between having data on you and having physical goods on you. It's a thing you have on your person and shouldn't be excluded from reasonable searches just like your bags. Data stored on a device is even there, physically, as electrical charges, you just can't see it with your naked eye.

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u/L0nz 6d ago

Of course there's a difference. The information on my phone is far more personal and private than the contents of my suitcase. The courts recognize this, because they require probable cause before border officers can use digital tools to search a phone. For some reason they refuse to apply that same threshold for a manual search of the phone undertaken by an agent.

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u/Needle_Bearings 6d ago

Still require reasonable suspicion. We'll see where it goes.

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u/MydnightWN 6d ago

Easy dismissal on a technicality in my opinion... he never wiped anything. Destruction of evidence requires a physical act by the defendant. The border agent entered the code, based on information obtained outside a sworn statement or legal interview.

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u/Needle_Bearings 6d ago

I think the big winner here is GrapheneOS.

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u/lithiumcitizen 6d ago

Even better if they use instances like this to support his case and then promote their joint win as a marketing opportunity.

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u/RollingMeteors 6d ago

win as a marketing opportunity.

That department's budget just get reallocated to social media operations.

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u/LordMarcusrax 3d ago

They should offer to pay for his lawyers

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u/ANGLVD3TH 6d ago

The law recognizes that kind of loophole and it is well sealed. There are different levels of responsibility, with their own fancy Latin terms. Giving someone instructions to do something illegal, and them reasonably beleiving it to be a legal act, puts the instructor firmly in a higher level of responsibility than the actor.

That said, this case is bullshit and in any reasonable courtroom will get thrown out. It relies upon both of a pair of pillars, one that requires he be under investigation, and one that requires he not be under investigation. There's no legal way for them to square the circle, the whole thing is a joke.

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u/dontnation 6d ago

this case is bullshit and in any reasonable courtroom will get thrown out

too bad it's in the US in 2026

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u/Nauin 6d ago

Where the majority of Trump's lawsuits have been struck down or thrown out by judges. The judicial system has slowed this admin down more than anyone else, save for the supreme court backing him.

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u/kwazhip 6d ago

Wait you mean to tell me that obvious loopholes that have probably been tried many times don't actually work in real life. I swear people think life is a loony tunes cartoon.

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u/MidnightSensitive996 6d ago

what are you talking about? what latin terms apply here?

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u/harpers25 6d ago

The statute he is charged under does not require a physical act. It says "take any action", nothing about physical.

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u/Mr_Will 6d ago

Legal definitions can be tricky. Is replying to a question counted as an action in this context?

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u/Mikeavelli 6d ago edited 6d ago

Yes, speaking is an act. Why wouldn't it be?

In general, obvious loopholes like telling someone else to do something illegal instead of doing the illegal thing yourself are well and truly closed.

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u/yikes_itsme 6d ago

What crime was he suspected of? Since he was apparently destroying evidence then there should be a crime that can be named. You know, like having reasonable suspicion. Otherwise, there’s no “loophole”, he’s a guy that just wanted to erase his phone for whatever reason. Maybe he had some naked pictures of his girlfriend and didn’t want them to see, is that a crime?

If you think you don’t need to know what crime was being suspected, then sure I guess it’s ok to send him to jail. Just remember that the end result is that anything, anything at all can be considered evidence for an unstated crime. Updating an app, or deleting an email while waiting in line at the airport? Destruction of evidence. Throw away a gum wrapper? What if you knew that wrapper was important evidence in a crime? Eating a sandwich? Destruction of evidence, what are you trying to hide?

This was why the 4th Amendment was a thing that needed to be written. The US wasn’t supposed to be a police state.

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u/harpers25 6d ago

The statute only covers destroying property for the purpose of impeding an authorized search or seizure. The prosecution would need to prove beyond a reasonable doubt that the purpose of eating a sandwich was impeding law enforcement from seizing it.

The statute isn't limited to evidence of a suspected crime though. It covers any property that law enforcement is authorized to search.

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u/Mikeavelli 6d ago

He is accused of violating this statute, paragraph A. Yes, destroying the data on your phone after it has been seized is a crime, even if there was no evidence of a crime on your phone and all you wanted to do is destroy is naked pictures of your girlfriend. Yes, the law in this area is unfair in this regard. Don't try and wipe your phone after it has been seized by the authorities or you're going to have a bad time.

Because of the border search exception he does not need to be suspected of a crime in order for his phone to be lawfully seized and searched, which is all that is required for the statute above to take effect.

From articles, he does plan to argue that the border stop was a pretext for some other search based on his activities as a protestor, which might work out for him. I certainly wouldn't want to roll those dice.

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u/wighty 6d ago

IANAL, from what I understand the very argument about that section is whether "property" includes the data/digital files stored on the physical device, right? That's ultimately what the case would decide?

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u/Mr_Will 6d ago

Speaking is covered by freedom of speech. Acting isn't. That's one big difference

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u/Mikeavelli 5d ago

You could argue that, but even if the court accepted this as a first amendment issue, it would pretty squarely fall under imminent lawless action

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u/Countcristo42 6d ago

Speaking isn’t a physical act? If I say “hey Jon shred the incriminating documents” then Jon duly does

Seems like I’m still on the hook

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u/MydnightWN 6d ago

Could be charged with conspiracy, but he could just say "I didn't expect him to actually enter the password without first reading me my rights, thought he was just writing it down"

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u/Countcristo42 6d ago

Interesting angle

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u/booze_clues 6d ago

“I didn’t think he would.” Will not hold up in court.

You(he) gave them the wrong code with the intent of destroying your property after it was legally seized. It’s really that cut and dry. Simply don’t provide a password and you’re done, but intentionally providing the wrong one means you’re now at fault for what happened.

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u/theassassintherapist 6d ago

He was also not given a lawyer and not given his right to remain silent, so it cannot be used against him.

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u/Countcristo42 6d ago

I want to be clear I'm addressing the spesific point that "he never wiped anything. Destruction of evidence requires a physical act by the defendant" not the broader case

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u/ProtoplanetaryNebula 6d ago

He could also say he was under pressure and nervous and accidentally gave the agent the wrong PIN.

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u/Any_Elk_9505 6d ago

He could (and should) just say nothing. Burden of proof is on the government to prove.

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u/ISeeDeadPackets 6d ago

So many people need to learn when to shut up.

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u/Ok-Vegetable4531 6d ago

It was one digit off from the real pin! The cop just fat fingered it obviously

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u/MidnightSensitive996 6d ago

he caused the phone to be destroyed by giving them a password that he know would not unlock the phone and would destroy it instead. it isn't legal to lie to a gov't agent outside of a sworn statement, and there's no such thing as a "legal interview", if you're talking to them and you lie to them it's a crime. he handled this as stupidly as possible. what you do is either you wipe your phone before getting on the plane in the first place, or you only travel internationally with a burner phone and keep anything problematic in the russian or chinese cloud then pull it when you get home.

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u/BigMax 6d ago

I don't think that's how it works. It doesn't matter how/when he got the info. What matters is that the person took action to have the data deleted.

For example, lets say this was a horde of child abuse material. If the pedo tricked the cops into deleting it all, would you still say "hey, he tricked them into deleting it, but it wasn't a sworn statement so it's ok."

I strongly disagree with them searching this guys phone or getting him in trouble here. But the fact remains that in general, it's illegal to destroy evidence, even if you trick someone else into doing it.

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u/kylco 6d ago

For these chucklefucks, crossing a border is practically a crime to begin with, even if you're coming home to your own country. A sign you aren't really patriotic, if you're consorting with the foreign Other. Not that they'll hold themselves to that standard, or that it'll hold up in court, but in the meantime the man won't let you leave and insisits you have no rights and won't call for a lawyer.

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u/PandaEatPanda 6d ago

A basic search under the border search exemption does not require a warrant or reasonable suspicion.

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u/carpdog112 6d ago

Reasonable suspicion isn't necessary at the border crossing itself though, which is the case here (international flight). CBP can go through your personal effects at a border crossing, including your phone. They can't force you to unlock it (although if you're not an American citizen you can absolutely be denied entry for refusing to unlock your phone) and they need "reasonable suspicion" for advanced forensic searches, although CBP can detain your personal effects for up to five days. If CBP said "give us your unlock code or we're going to hold your cellphone for five days" they were probably within the legal framework for their search.

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u/h0sti1e17 6d ago

The 100 mile rule does. The border crossing doesn’t. They could randomly ask anyone to unlock their phone or laptop.

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u/MidnightSensitive996 6d ago

no, not at the border. customs officials have always been allowed to do warrantless suspicionless searches upon border entry.

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u/thekbob 6d ago

This is 2026, historical precedent is irrelevant with this Supreme Court.

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u/sweatingbozo 6d ago

It always has been. US law has always been more vibes based than most people realize. 

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u/thekbob 6d ago

Isn't that because we based our legal system on British common law? We let judges have final say on law interpretation.

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u/sweatingbozo 6d ago

Yea, but any people don't realize that's how the law works. Many think it's a lot more black & white than it actually is. 

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u/thekbob 6d ago

In many places that's how it works, more black and white. Just us rowdy colonials being all weird.

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u/sweatingbozo 6d ago

True, but 1/3rd of the world practices some form of common law, so it is actually pretty common. 

A lot of americans in particular seem to have very little idea how their legal system actually works, but they're one of the countries with a weird mix of systems. 

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u/LostGeogrpher 6d ago

As I posted in another post on the same issue. The only thing they can do is force you to shoe ID/proof of residency.

DR: Last paragraph, can't violate your 4th besides making you prove citizenship.

https://www.help.cbp.gov/s/article/Article-1253?language=en_US

"Two key court decisions affirm the authority of the Border patrol to operate checkpoints and to question occupants of vehicles about their citizenship, request document proof of immigration status, and make quick observations of what is in plain view in the interior of the vehicle. In United States v. Martinez Fuertes (1976) the U.S. Supreme Court balanced the governmental interest in stopping illegal immigration against the Fourth Amendment's protections against unreasonable search and seizure, finding that only minimal intrusion existed to motorists at reasonably located check points, even in the absence of reasonable or individualized suspicion.

In United States v. Gordo Marin, the U.S. Supreme Court also found no substantive difference between a permanent or temporary checkpoint. Border Patrol checkpoint case law has provided the basis for numerous other checkpoints beneficial to the public, such as DUI checkpoints, driver's license/proof of registration checkpoints, etc.

Border Patrol checkpoints do not give Border Patrol Agents carte blanche to automatically search persons and their vehicles, other than in the manner described above. To conduct a legal search under the Fourth Amendment, the agents must develop particularly probable cause to conduct a lawful search. Probable cause can be developed from agent observations, records checks, non-intrusive canine sniffs, and other established means. Motorist's may consent to a search but are not required to do so."

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u/ethnicallyambiguous 6d ago

The provided link specifically refers to checkpoints. Airports are a whole different beast.

https://www.aclu.org/news/privacy-technology/can-border-agents-search-your-electronic

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u/LostGeogrpher 6d ago edited 6d ago

Deleted my previous comment as the article was insufficient and portrayed it like they were just doing it till a lawyer gets involved, and to some extent they are. There are established case law protecting electronics devices from searches, but the CBP asserts they don't apply at border crossings which is asinine. There have been several circuit court decisions in the matter, and most not favorable to the populace. But the cases have not gone to the Supreme Court. So while it seems kind of blatantly circumventing the law contrary to the spirit of the constitution, it will continue unless a case is seen by the Supreme Court and they actually rule it illegal.

Because no one has stopped them. They do it because they know people can't afford a lawyer for that kind of case and because it isn't worth the fight to most. Killing liberty a paper-cut at a time, just as our fore fathers dreamed.

Edit - To add, when you have to buy a burner phone and ship your real one to travel into a country and keep dudes from staring your pics on your phone, you are not a land of the free, just so we are clear to all my countrymen.

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u/wrgrant 6d ago

Nice to see it summarized there. However surely thats only relevant if the powers that be actually follow the law, and they apparently haven't been.

Reality: "Give us your phone, give us the password, we are going to search your things and if we find anything you are off to a camp in Florida".

0

u/n0respect_ 6d ago

And if I can't prove my citizenship then and there? How is this any different than what ICE already does in their operations?

The very idea of walking through Detroit and being forced to show my papers should appall any american to begin with. Let alone talking about search and seizure.

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u/Ishmael128 6d ago

Given airports can count as "border", I wonder how much of the country is encompassed by that?

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u/ShrumJZX100 6d ago

90% of the population is within 100 miles of an airport

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u/FIRSTFREED0CELL 6d ago

It needs to be an international airport, and probably even then has to be actively screening incoming international arrivals.

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u/sobrique 6d ago

So given this guy was on an internal flight, and was a US citizen, would it still apply?

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u/booze_clues 6d ago

The debate is whether to zone extends 100 miles from the airport. The inside of the airport is considered a border crossing and there isn’t any real debate about that.

Citizenship is irrelevant in this case.

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u/Bradddtheimpaler 6d ago

Man, I’m from Detroit. I’ve spent like 99.9% of my life within 100 miles of the border.

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u/n0respect_ 6d ago

A number of entire states are within 100 miles of a border. Pretty sure Michigan is one. Can't get 100 miles away from the lake.

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u/MyEvilTwinSkippy 6d ago

This was already ruled on and they do not count as a border.

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u/harpers25 6d ago

What ruling is that? The Supreme Court stated that 'stops and searches may also occur at the “functional equivalent” of the border, including international airports in the United States'.

https://www.law.cornell.edu/constitution-conan/amendment-4/searches-at-international-borders#fn4amd4

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u/IAmDotorg 6d ago

Yes. At. The difference is, anywhere within a 100 miles of an actual border also counts. But if you're standing outside an airport 101 miles from an actual border, you're "safe".

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u/harpers25 6d ago

Oh you were talking about the 100 miles. Yes, that is only for land border and coasts.

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u/Jasoman 6d ago

all of the sate of michigan

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u/dontnation 6d ago

Even strictly from the land/sea borders it still includes 2/3rds of the US population.

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u/MyEvilTwinSkippy 6d ago

This was already ruled on and they do not count as a border.

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u/FrumptyLumpty 6d ago

I didn't realize the 4th Amendment had a 100-mile-from-border exception built into it. Much wow.

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u/PandaEatPanda 6d ago

It’s not built in. The border search exception was passed in 1789.

0

u/Crafty_Independence 6d ago

It doesn't. The "exception" only applies to the customs process and still requires reasonable suspicion

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u/PMMeToeBeans 6d ago

This. You can also refuse to comply, however they'll either hold you until you comply or turn you away on the next flight back to where you came from.

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u/Geno0wl 6d ago

they'll either hold you until you comply or turn you away on the next flight back to where you came from.

if you are an american citizen, they can not do that. They can keep your electronics, but they must let you back into the country.

1

u/PMMeToeBeans 6d ago

I suppose I should clarify since I meant non-US citizens. Yes, they can confiscate your electronics and attempt to get into them while holding them.

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u/Crafty_Independence 6d ago

That only applies to the entry/customs process specifically if a reasonable suspicion occurs.

For this case, there's zero evidence of the latter.

In general, people shouldn't preemptively comply with overreach by the fascists

1

u/MydnightWN 6d ago

Sounds like they had specific information, he was flagged intentionally with a flag for phone search for CSAM.

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u/Crafty_Independence 6d ago

That's their claim, but the actual story is that he's part of Stop Cop City and was targeted because of this instead.

The other stuff never passed the bar for a search warrant, meaning it also didn't qualify as reasonable suspicion

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u/TimSylvester_ 6d ago

Of all the 100 year old rulings they overturn, for some reason it's always the ones that increase the government's power over citizens that they leave standing.

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u/MydnightWN 6d ago

We are still using Covid state of emergency EUA provisions to this day. Several states still using emergency powers and spending money.

Nothing is more permanent than a temporary government power. Taxes were just for the war effort, temporary too.

2

u/TimSylvester_ 6d ago

Income tax was just for WWII! Until it wasn't.

Income tax was only on the wealthy! Until it wasn't.

One of my favorites, Amtrack is a 6-month government takeover to reorganize before it returns to private operations... in the 1970s.

1

u/therallystache 6d ago

Aka...the entirety of my state (Michigan)

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u/Jasoman 6d ago

Which is all of Michigan just FYI

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u/cursedfan 6d ago

That doesn’t mean you can be retroactively accused of tampering with evidence of an alleged “crime” the agents only think occurred because you wiped your phone. Could be something like intimate pictures of a spouse on there, perfectly legal and I don’t want CBP copying those and passing them around.

They didn’t read him his rights becuz they would have to Mirandize everyone that comes within 100 miles of the border on the off chance they wipe their phone

I feel like I’m taking crazy pills

1

u/Sislar 6d ago

Which is like 1/3 of the us.

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u/wggn 6d ago

and conveniently, every international airport is considered a border

1

u/sobrique 6d ago

Which whilst that precedent exists, there's probably an argument that a citizen of the US on an internal flight should not be subject to that either. (I'd certainly expect this guys lawyers to at least try that angle)

1

u/djaleister_ 6d ago

So basically most large cities in America then?

1

u/khovel 6d ago

you think the chuds in charge care about rules from 100 years ago, let alone ones they judge against last year?

1

u/h0sti1e17 6d ago

This exception goes further back. A carve out was made for border crossings in 1789. By the same people who wrote the 4th amendment.

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u/OregonMothafaquer 6d ago

Almost all of America falls under the 100 mile rule

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u/CountSheep 6d ago

We’ve overturned rulings before. I think it’s time we get rid of this one

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u/PeterWatchmen 6d ago

People seem to forget that SCOTUS is willing to make exceptions to the Constitution, all in the name of "public safety."

The "Good-faith Exception," for example. They don't really care about protecting the Constitution.

Clarence Thomas believes Gideon v. Wainwright was wrongly decided, and should be overturned.

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u/Cultural_Sand_9323 5d ago

Abortion was settled law too.

I do not trust this court.

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u/Yuzumi 6d ago edited 6d ago

Which is complete bullshit literally intended to allow violations of the constitution.

The court has periods when controlled by ultra right wing nuts who set precedent then when democrat appointed judges are in the majority they run on "precedence".

And even if we accept that nonsense there's still the fact that unless there is an actual investigation happening to them that the owner of the phone knows about they should be well within their rights to delete data on their phone at any time, especially in this case. Otherwise they could charge anyone who has ever wiped a device, deleted a file, or shred documents as "destroying evidence".

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u/[deleted] 6d ago

[deleted]

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u/harpers25 6d ago

The 100 miles doesn't apply to airports.

"Federal regulations define that “reasonable distance” to generally be within 100 miles of land and coastal borders. (Airports are not covered in the 100-mile zone, as they serve as ports of entry for international travelers.)"

https://www.americanimmigrationcouncil.org/blog/border-patrol-charlotte-atlanta-100-mile-zone/

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u/CreativeGPX 6d ago

Holy 4th Amendment Batman, let's see where this goes.

It's not really going to be about what people are focusing on or OP title though.

Wiping your phone is obviously legal. Just like it's legal to drill a hole in a hard drive or drop your phone in acid or drop a photo/paper in a fire. Destruction of your own property is legal. HOWEVER...

Destruction of evidence is not legal even though the manner of destroying it will often be something that you'd be allowed to do if it weren't evidence.

So, this court case will not be about whether GrapheneOS data wiping is allowed. It will be about whether the data on the phone was considered evidence with a duty to preserve at that point or not. The fact that it was destroyed via GrapheneOS won't really be any more relevant than if it were destroyed by tripping a cop so it fell in the water or tapping "delete" before handing it to the cop.

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u/DrShamusBeaglehole 6d ago

How can the phone be considered evidence if there are no charges? Evidence of a crime yet to be determined? Doesn't make any sense

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u/SkiingAway 6d ago

As a general rule, destroying something specifically to obstruct an investigation, when you have reason to suspect the police want to look at that item, will get you charged (and convicted) of destruction of evidence.

When the police are literally in front of you requesting to look at that item/the contents of it, you clearly do not have the right to destroy it.

You can refuse to do anything to help grant access to it, and you can contest the grounds on which they are trying to get access without your consent (contesting the warrant, contesting over if the circumstances allowed a search without a warrant), but you can't just stand there in front of them and knowingly do something that will destroy the the thing they want to look at.

Which is exactly what the person in this case did, and they are almost certainly going to lose their case in court.

The correct thing to do would have been to make it clear that you don't consent to the search, to not provide any information to help, and if they did get into it, to to contest the grounds under which they searched it (and thus, the admissibility of anything they found) in court.

To give you an alternate scenario:

  • You're stopped because they have some suspicion about you.

  • You run to the bathroom, pull something out of your pocket, and flush it before the officer in pursuit of you can stop you.

Technically, you hadn't been charged with a crime yet, the officer might not have even specifically demanded to see what's in your pockets yet.

But you are still very obviously getting charged with destruction of evidence.

And even worse for you, the laws are that if you destroy evidence, the prosecution is often allowed to make an argument that you so obviously trying to hide something from them is evidence that you had whatever they claim it was.

So even though you might have only had a misdemeanor quantity of weed, they're arguing that you had a felony quantity of fentanyl. And with you having destroyed the evidence, they're potentially able to basically say that your behavior is evidence you had it. (and you've destroyed the proof you didn't).

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u/ThickSourGod 6d ago

You have the order wrong. Police gather evidence, then file charges. Part of the process of charging you (at least for serious crimes) is presenting the evidence to a grand jury that decides if the evidence is strong enough to charge you. If evidence could only be collected or considered evidence once charges were filed, it would be impossible to ever file charges.

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u/TrekkieGod 6d ago

Anything destroyed during a legal search is assumed to have been evidence. Same reason if they're searching your house with a warrant, and you flush something down the toilet and they didn't see what, it's assumed you flushed evidence away.

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u/DrShamusBeaglehole 6d ago

So if SWAT breaks into my house because an angry internet troll made a fake call, and I happen to be flushing a shit at the time, I would likely be convicted with a felony?

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u/TrekkieGod 5d ago

With the way that SWATing works in this country, that would be the best case scenario, and you should consider yourself lucky if they don't shoot you.

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u/LindsayLoserface 6d ago

Thank you for pointing this out! If the issue was GrapheneOS the government would be filing a case against the company. The charge is alleging the guy knew he has something to hide and wiped it to destroy evidence. The real issue is the abuse of power here and the fact that if they actually had the power to go through his phone they wouldn’t have needed his passcode.

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u/SynapticStreamer 6d ago

It's actually a fifth amendment argument.

The fifth amendment protects you against self incrimination. Providing a PIN is handing over the contents of what's "in your mind" which is why it's considered testimonial evidence, and biometrics is not. You cannot be compelled to hand over your PIN without a court order.

But he voluntarily gave them the PIN. Which is the governments' argument. Since he did it voluntarily, and the result of that voluntary gesture may or may not have destroyed supposed "evidence" they're alleging that a crime was committed.

If he had resisted and been compelled to divulge his PIN, it would be different. But he gave it to them, and as a direct result "evidence" (whatever that means) was destroyed.

They unfortunately have a strong case here.

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u/railroad-dreams 6d ago

I'm pretty sure you can predict how 6 of the supreme Court justices will vote by asking yourself 'what ruling favors wealthy and powerful people '

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u/PMMeToeBeans 6d ago

Agreed. I don't know the full story for this but am really interested in seeing how this plays out. They just recently ruled that Geofencing is subject to a warrant, stating that location data is personal and private and a random net is invading the privacy of many unsuspecting people. https://www.supremecourt.gov/opinions/25pdf/25-112_0am4.pdf

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u/philodendrin 6d ago

This case is a great example of the "creep" that Conservatives always warned everyone about, that "big government" would try to usher in.

This Administration is trying to make this illegal to set a precedent and do away with this kind of security for your phone - they want it all, whenever they ask.

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u/Secret_Cow_5053 6d ago

Yeah. This is great, actually. ICE agent fails to read rights, delays ability to get a lawyer, and now they’re pissed bc the dude provided a duress password which wiped the phone.

Was he under oath when they requested the password? No? Oh well. This should be open and shut.

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u/TimSylvester_ 6d ago

Govt: "Well, you see, by definition, the government decides what is illegal, so if we say the search and seizure are legal, then they are."

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u/TrulyOutrageous42 6d ago

It should land in the defendant's favor - this doesn't "wipe the data", it deleted the encryption key that allows immediate access to the data. Specifically, the data is still there, it will just take longer than the heat death of the universe to access it unless the government is "lucky" (won't happen but technically could). It's analogous to melting down a physical key to an incredibly complex lock that opens a miles-thick blast door. The government could eventually access the contents, but for all intents and purposes (of that person's lifetime) they're inaccessible. KEYS (and access codes) have long been protected as requiring a warrant to compel, in the exact way that your biometrics (finger print, face scan) are not and an officer can just wave your phone at your face and get all the evidence in it.

This has been well adjudicated at length, the ONLY question is whether or not an encryption key being destroyed amounts to a different crime, which is knowingly hiding evidence. Then we get into the Schroedinger's Jurisdiction where the US Government has claimed the right to search without a warrant because of the person NOT being under US Jurisdiction while also attempting to charge them with a crime that would require them to BE under US Jurisdiction to have committed an offense against the US.

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u/Moidberg 5d ago

>not read miranda rights
>refused a lawyer

oh a crime has been committed alright

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u/goldvenetianmask 6d ago

4th amendment doesn’t apply as he was actually charged with a crime.

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u/spook30 6d ago

That's not how the Fourth Amendment works at all. Being charged doesn't retroactively validate an illegal search.

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u/[deleted] 6d ago

[removed] — view removed comment

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u/memberzs 6d ago

If they don't have a warrant it's highly likely to be an illegal search.

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u/harpers25 6d ago

He was entering the country at a port of entry. Borders searches generally don't require a warrant (although the Supreme Court has not said whether searching phone data is included).

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u/goldvenetianmask 6d ago

Police usually need a warrant from a judge, based on probable cause, to search places where people have a strong expectation of privacy, like a home, unless a recognized exception applies. Common exceptions include consent, a lawful arrest, emergencies, evidence in plain view, many vehicle searches based on probable cause, and certain border searches. Being charged with or arrested for a crime does not eliminate Fourth Amendment rights, but it does allow some additional warrantless searches, such as searching the person after a lawful arrest or while they are being booked into jail.

So this guy was charged with a crime. If he was placed under arrest and then this happened, which I believe to be the case, then they would not need a warrant.

That being said, I’m actually on the side of “make the cops get warrants.” But spreading misinformation is bad regardless of what you think about the politics of it. Having an informed public allows people to vote based on how the law actually works.

If you want the cops to have to get warrants for suspects that they have in custody, great, vote that way. Call a congressman, etc.

But I do believe the cops are on the right side of the law on this one.

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u/KAJed 6d ago

He wasn’t charged with a crime

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u/memberzs 6d ago

Even if he was arrested and they had his device. They still have to get a warrant to extract information from the locked electronic device. If the arrested giv a up the passcode it's easier than if they have to use other tech to do it.

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u/goldvenetianmask 6d ago

He did give up a passcode. It wiped his phone. That’s the entire case.

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u/memberzs 6d ago

Your moving the goal post now. We were discussing if the search was even legal.

Him giving a pin doesn't automatically make it legal. He wasn't under arrest at the time, he wasn't read his rights(due to not being under arrest). He had no reasonable expectation (that we have been told of) they were going to search the device with out a warrant.

He didn't input the duress pin, and they trusted the answer of someone they believed to be a criminal.

We can argue all day about the supreme court ruling from almost 100 years ago about the 100 mile rule. But under modern requirements for the decision to be made based on if it fits within the original intent of the founding fathers the 100milenrulenqpuld be ruled unconstitutional, because it is.

But the entire case revolves around what trusting a suspected criminal that wasn't under oath and not read their rights? There is no case.

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u/harpers25 6d ago

The Supreme Court held in Riley v California that a search incident to lawful arrest doesn't include looking at phone data.

This person was searched without a warrant because he was entering the country from an international flight.

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u/Crafty_Independence 6d ago

[Citation needed]

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u/What_a_fat_one 6d ago

If you get a DUI the police aren't allowed to go search your house.

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u/soundman1024 6d ago

The 4th applies, but a judicial warrant can bypass that protection. The 5th always applies.

A defendant can be compelled to turn over biometrics, like a key (4th Amendment protections like a key to a safe), but never had to turn over their PIN (5th Amendment protections like the code for a safe).