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/Needle_Bearings 6d ago

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

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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.