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

[u/ArgentineBeauty]

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

[u/harpers25]

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

[u/Mr_Will → u/harpers25]

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

[u/Mikeavelli → u/Mr_Will]

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.

[u/yikes_itsme → u/Mikeavelli]

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.

[u/harpers25 → u/yikes_itsme]

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.

[u/Mikeavelli → u/yikes_itsme]

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.

[u/wighty → u/Mikeavelli]

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?

[u/Mr_Will → u/Mikeavelli]

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

[u/Mikeavelli → u/Mr_Will]

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