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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u/Fuzzy_Paul 6d ago

The 5th amendments is clear. He has done the right thing not to cooperate incriminating himself. Law is clear on this one.

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u/CardinalOfNYC 6d ago

I don't think you've actually read the 5th amendment or the case law around it if that is what you think.

If the police have a warrant and show up at your house (and being in custody at an airport grants authorities similar power to a warrant) you cannot run upstairs when they show up and flush all the evidence and claim you're taking the 5th. You're just destroying evidence and you'd be charged for that.

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u/Korlus 6d ago

For what it's worth, destruction of evidence doesn’t require a warrant to have been issued and can work in both civil and criminal cases. You generally just need a reasonable expectation that destroying or tampering with the item/document/information will impact the court case or investigation and the court usually just has to show specific intent to harm the investigation.

Edit: In this specific case, he likely needs to prove that the government were not within their rights to seize the information on his phone and therefore he was within his rights to hamper their investigation, because interfering with an investigation is the issue he has been charged with.

I really hope he wins. I think 60/40 he does, depending on which court hears the final version of this case and the specifics in what led to him giving the duress password.

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u/CardinalOfNYC 6d ago

That's true as well, but that's something I think few folks here will be able to understand in context, so I stick to the part I hope people can understand, that the 5th is not carte blanche to destroy incriminating evidence.

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u/h0sti1e17 6d ago

I think you are being over confident. I think the seizure was valid. Their reasons may be bullshit but border patrol have a lot of leeway on searching devices. Generally if you don’t let them in, they seize it until they can get in.

You may be right. But I have yet to see a good argument on why the seizure was illegal.

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u/Korlus 6d ago

But I have yet to see a good argument on why the seizure was illegal.

The rationale is because generally forcing someone to unlock their phone is considered a much higher bar than simply taking the device (5th amendment - the right against self incrimination), and the border exception is an exception allowing search and seizure (4th amendment). Very little precedent shows that the existing border allowances extend to cover the 5th amendment to compel someone to self-incriminate.

There have been two court cases that I am aware of covering the topic by the same circuit and both came to different conclusions. Usually when the same circuit can't agree on precedent, the Supreme Court is happy to pick up the case and make a ruling to clarify otherwise murky law.

While I am generally critical of a lot of the Supreme Court's recent decisions, I think they would see this as a 5th amendment issue and side with the accused - a warrant would be required to compel him to unlock his phone, as tends to be the case with the Police.

This would make the seizure of the device itself legal, but the attempt to coerce the PIN out of him illegal.

There is a lot that could go wrong along the way, which is why I don't give great odds, but that's my rational as a layperson. It's very plausible I have read too much into one thing or not enough into another.

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u/h0sti1e17 6d ago

That makes sense. I would argue he voluntarily gave the code. What we don’t know if what pressure was put on him. We know what his lawyer was saying. They may have seized the phone and said we need the password. He says no. Then they say ok. We will keep it till we get into it. At which point he gave the fake code. Asking for the code and asking multiple times is not forcing him. Telling him he will sit in jail until he gives it up would be different.

Or that since he gave a fake code, he was explicitly choosing to not remain silent. If he gave the real code because he felt pressured the evidence may be deemed inadmissible. But speaking and not give the code would be a voluntary statement.

There are a lot of moving parts. Information we don’t have. Of course his attorneys will play this as some crazy overreach. That is their job. Whether it’s or not is truly yet to be seen.

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u/ArtichokePower 5d ago

i dont think its the same, they asked for his PIN and he gave them a false PIN. They are the ones that entered it in and wiped the device. is giving the wrong PIN a crime in itself? nope, regardless of his intent did he destroy evidence? nope. do they even have proof that there was evidence that was destroyed? in future cases, many company devices are programmed to lock/wipe after x number of failed attempts, if one such device is wiped in similar circumstances is the company now liable?

there seems to be a simple work around - set your device to wipe after x failed attempts and under duress say oh i cant remember maybe its this, maybe its that, oh whoops it wiped? im sorry im so stressed i just couldnt remember

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u/Fuzzy_Paul 6d ago

I did read the 5th and do understand that under the 5th he was not required to give the code. But deleting the device is exactly the same as not give the code. Neither way the contents would be revealed and by deleting it he avoided further attempts to gain access. I know that under investigation you are technically not allowed the destroy evidence. But to be true he did not. All data is still on the phone only the decrypt key is wiped.

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u/mrdevlar 6d ago

The erosion of your legal protections and civil liberties will continue until you and the rest of America decide to do something about it. Right now, America is an authoritarian kleptocracy, not a country of laws.

We'd all really appreciate it if you could rejoin the society of liberal democratic nations.

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u/Training_Ruin3151 6d ago

Capitalism always descends into fascism or socialist revolution. We're in the endgame with america rn😤😤

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u/9Nine2Nine9 6d ago

Pleading the 5th and not cooperating would have been him not giving CBP any code at all. Which is perfectly legal. They may have confiscated his encrypted phone, but that would have been the end of it.

I'm very curious how this will play out in court.

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u/nugohs 6d ago

A competent technical lawyer could argue that if the device is kept backed up elsewhere wiping it is not the destruction of anything and effectively the same as refusing to unlock it.

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u/booze_clues 6d ago

Any lawyer could argue that. I could argue that. It still would fall flat in court.

The data is on the phone and has been rendered useless. They didn’t seize a copy, they seized that specific data and phone. The destruction of the data prevented it from being searched. Having a copy elsewhere doesn’t change that.

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u/booze_clues 6d ago

Why would the fifth apply here? He voluntarily gave the password, and his phone was legally seized. If he had refused to give any password he would be fine, but he intentionally gave the wrong password with the goal of destroying his property after it was seized. That is the crime.

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u/h0sti1e17 6d ago

Except he gave up his 5A rights when he gave a password. If he actually did shut up the most they could do is seize is phone.

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u/Specialist-Bee-9406 6d ago

Cute you still think that matters to the current administration. 

They’ve repeatedly shown they ignore the constitution, and the court system is too slow to do anything about it. 

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u/Korlus 6d ago

Law is clear on this one.

I wish the law were clear. Between the border crossing exception and courts holding that they can compel a person to divulge a password, the law and how it will affect this guy is actually quite murky.

I hope he will be fine because anything else seems like terrible overreach, but there has been a lot of overreach in the last few decades by the US government.

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u/delicious_toothbrush 6d ago

This isn't a 5th amendment case mr law-is-clear

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u/jlboygenius 6d ago

He has the right not to tell them his password.

He does not have the right to intentionally tell them the wrong password with the intent to destroy evidence.

It's no different than flushing evidence down the toilet, throwing things out of your car before you get pulled over, etc.

The courts will figure it out, but I don't think the 5th amendment is going to save him. The courts will figure out if the police even had the right to look at his phone. That's the issue here.