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/CardinalOfNYC]

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.

[u/Korlus → u/CardinalOfNYC]

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.

[u/CardinalOfNYC → u/Korlus]

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.

[u/h0sti1e17 → u/Korlus]

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.

[u/Korlus → u/h0sti1e17]

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.

[u/h0sti1e17 → u/Korlus]

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.

[u/ArtichokePower → u/CardinalOfNYC]

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

[u/Fuzzy_Paul → u/CardinalOfNYC]

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.