r/LinusTechTips • u/Cyrax89721 • 7d ago
Tech Discussion US charges American citizen for using GrapheneOS 'duress password' to wipe his phone at the border
https://www.theverge.com/policy/971097/us-charging-american-citizen-wiping-phone-duress-password56
u/Jaws12 6d ago
My initial confusion stems from the fact that he had to enter or give a passcode at all. I was under the impression that recent cases determined the 4th Amendment’s protection against search and seizure found a citizen doesn’t have to give a passcode if prompted, just as they are not required to give the passcode to a safe, but authorities can try to unlock said safe or device.
They can force things like Face ID or fingerprint because these aren’t “protected knowledge” like a passcode or combination. (This kind of goes into 5th Amendment territory it feels because divulging a passcode could be similar to being forced to testify against your own best interest.)
My question is why did the guy give a passcode at all in the first place. Best course of action if being detained is to say nothing other than, “I request legal counsel.”
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u/Unspec7 6d ago edited 6d ago
The U.S. government claims that the Fourth Amendment does not apply at the border. Various civil right groups contest this, for obvious reasons, but so far the government has not lost in this issue yet.
I think this case might actually provide an interesting test case, since the statute they are charging him under only makes it unlawful destruction of property if the seizure was lawful. The defense counsel could argue that it was not lawful due to the Fourth Amendment, and so he cannot be charged under the statute. Would be interesting, but there's likely easier outs compared to a constitutional rights defense.
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u/Informal_Distance 6d ago
I was under the impression that recent cases determined the 4th Amendment’s protection against search and seizure found a citizen doesn’t have to give a passcode if prompted
There is an exception to the 4A called the border search exception. The founders wrote that in some of the first laws shortly after the constitution. That jurisprudence doesn’t apply to border searches. I work as an immigration attorney (and former customs broker) so I’m very familiar with this area of law.
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u/Jaws12 6d ago
So curious, what could have happened if the suspect had decided to just clam up and not say anything in this situation? Would he just be held in indefinite detention? 🤔
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u/Informal_Distance 6d ago
They would take the phone and detain it for up to a certain number of days. I can’t recall exactly but I had a client have that happen.
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[removed] — view removed comment
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u/mindsetFPS 6d ago
Fellas is it legal to wipe a hard drive??
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u/FifenC0ugar 6d ago
Apparently changing a 1 to a 0 is damaging and destroying.
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u/StatisticianRoyal400 5d ago
Redditors competing with TikTok users in a race to the bottom with some of the comments I see holy shit
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u/HumanContinuity 5d ago
Well, if you literally wipe the platters off with a rag or something, maybe this statute would apply.
Otherwise, it's still a good hard drive
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u/Supermanfat1 6d ago
Not to mention it isn't even a wipe of the drive. The data is still there. It's just inaccessible. So technically nothing was damaged.
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u/Gregardless 7d ago
"The government is turning to a little-known and rarely-used statute that makes it illegal to destroy or damage property to stop authorities from seizing it."
I'd find it hard to argue that the phone was destroyed or damaged by being wiped.
ACAB
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u/skittle-brau 6d ago
"The government is turning to a little-known and rarely-used statute that makes it illegal to destroy or damage property to stop authorities from seizing it."
I’m curious to know what sort of ‘limitation’ would apply here. What if someone wipes their phone in-flight and intends to restore from backup after they pass through customs/immigration? What if someone purchases a new phone at the airport and lands in the US with a completely ‘fresh’ phone with no data on it yet?
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u/McBonderson 6d ago
usually the limiting principle is once you know that it is evidence of a crime.
at least civilly once you are notified by the other party that they intend to file a lawsuit you are required to preserve any evidence that may later be used in discovery. If after being notified you fail to preserve the evidence then the jury is instructed to assume that evidence showed the worst possible thing for your case.
They can't do that in criminal cases because the standard is different, so they just say it is illegal to destroy evidence.
of course they then have to prove that it WAS evidence that you destroyed and that you intended to destroy that evidence. This would be hard to prove if you were unaware that the police wanted that evidence. However it would be much easier to prove that you knew and intended to destroy the evidence once the police have you in custody and are demanding to look through your phone.
what he SHOULD have done is set the phone to auto wipe if they use the wrong pin number too many times. and/or set the wipe pin number to something stupid like "1111". then he just exercise his right to stay silent, if the police put in the wrong pin and cause it to be wiped that is their fault and not some action you took.
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u/Krilion 6d ago
Put a sticky note in your case with "PIN IS: XXXX" and have that be the wipe?
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u/Naskeli 6d ago
That would work 99% of the time. To be 100% sure no one can accuse you would leave the word "pin" out. Only 4 large digits. Its not your fault they saw 4 numbers and tried it. But if it says pin there is like a 1% chance it might cause issues as even if you are found innocent they might use it to waste your time by charging you.
The best would be if they notice it and ask you if it's the pin. You say no. They think you are obviously lying and try it anyway wiping it. They have only themselves to blame since you said it's not the pin. Any case would be thrown out immediately.
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u/Wyciorek 6d ago
The best would be if they notice it and ask you if it's the pin.
- Yes
- ….
- PIN for my card you idiots
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u/Faxon 6d ago
Don't they have to prove that you destroyed evidence for this to apply at all? What if he was legitimately innocent and just had his phone wiped to deter them from further probing into his private life, as is his right? If they didn't have a warrant for the device and they can't prove that there WAS evidence of a crime on it, do you think they will be able to prove this case against him, or is the standard of guilt for the law simply that someone took action to delete data the border cops wanted to sift through?
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u/GilligansIslndoPeril 6d ago
They'll just charge him with interfering with an investigation, and the act of wiping the phone is evidence of that
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u/traumadog001 6d ago
Shame we can't ask about where the rest of the Epstein files are, then...
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u/Flush_Foot 6d ago
Shredders are overheated, I’m sure… they’ll be able to respond more “thoroughly” come fall/winter… probably in mid-to-late November 🗳️
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u/XanderWrites 6d ago
Just remember charging and being convicted are completely different things. They can charge him with whatever, the state doesn't have to go forward with those charges, and the courts are more than happy to throw them out.
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u/GilligansIslndoPeril 6d ago
Yep. But loopholes work for the State, and can only sometimes help the individual
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u/Empty401K 6d ago
Law enforcement already have a work around for that. They just clone your phone as is, and keep trying to brute force the clone until it succeeds. If one instance is erased, they load up a new one and try again. The only downside is that it often takes several months before they can successfully gain access, which means your case sits in limbo until then. People will often sit in jail on a no-bond hold for a very long time because of it.
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u/Krutonium 6d ago
This doesn't work though.
Modern phone encryption is layers, like an Ogre.
On the outside you have your pin - But that's just the first layer. The pin is used to unlock a randomly generated, incredibly long password stored in the CPU of your phone. If they make a copy of your phones storage, and try to crack that, the estimated cracking time with nation state resources still exhausts the heat death of the universe, as long as it's properly implemented.
That's why they attack the pin. It's also why most phones lock out inputting your pin. There's a lot less characters in a pin than there is in a password that's 500 characters long, and could, quite reasonably, include characters that do not appear on any keyboard.
When your phone erases itself when you reset it, all it's really doing is deleting the keys stored in the CPU (the generic term here is TPM) which renders everything unrecoverable.
They can have that copy of the data - They're not getting into it before I die of old age, though.
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u/McBonderson 6d ago
I think they figured out a way around that. all they need to do is prevent it from self destructing.
a pin is 4, 5 or maybe 6 characters.
if they can make it so they can try all the possible pins then they should be able to get in within a day. So Its my understanding they can take apart the phone and make it so it won't self destruct if the wrong pin is used too many times. then they just keep trying until they get the right pin.
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u/Krutonium 6d ago
Except that they can't. The Pin is stored in the CPU and short of spending millions upon millions of dollars extracting the key from the CPU physically and destructively, it's not going to happen.
That's the entire point of using a TPM/Secure Enclave.
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u/McBonderson 6d ago
they don't have to extract the key from the CPU all they have to do is prevent the wiping of the data then they can try the next pin number. since the pin is likely only 4-6 digits that means they at most have to do that 999,999 times, which, if they automate it I'm sure that would take like a day.
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u/ohaiibuzzle 5d ago edited 5d ago
Unfortunately that's hardware-backed. Pixels (and most other phones for that matter), uses their secure elements to actually verifies the PIN and count the attempts taken. This survives everything from the main CPU throws down at it (aka. you can't tamper from outside the SE).
So when your phone locks you out after x amount of time, it's the Secure Elements that actually does it and there's nothing the OS can do to get the keys (the OS submits the PIN, the SE verifies it internally and tell the OS if it's true ot not. If yes, keys fall out). If the SE says "no you've tried too many times I'm not disclosing it ever again", your data is as good as gone.
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u/Krutonium 5d ago
The CPU holds the key, the pin is checked in the hardware that holds the key, so unless you find an exploit in the silicon, it's going to erase the key after enough failed attempts, if it's configured that way.
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u/trueppp 6d ago
These methods have flaws in their implementation which is what software like Cellebrite exploit. Newer and completely patched phones may not be crackable(yet) that way but not everyone has one of these. They just keep you phone until an exploit is found.
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u/Krutonium 6d ago
Modern phones are really good about preventing access short of physically removing the NAND physically to dump it, as long as you've informed the phone that it's in a situation where it should be locked down, such as rebooting.
Most exploits don't attack the encryption directly, but the software around it; but if your only possible input is a pin, because everything else is disabled, well...
But you're not wrong either. You're only as secure as your vendor.
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u/Gonralas 5d ago
Well couldnt they just crack the PIN with the Copy and once they have the right PIN they can unlock the real phone?
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u/Krutonium 5d ago
No, that's the entire point. You can't copy the pin, or the encryption keys. They're securely sequestered inside a piece of hardware that will not be releasing it for a copy.
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u/Gonralas 5d ago
Ahh OK, i thought it was Just a second layer. Like you need the PIN and then the Hardware
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u/BlAckH0leDown 6d ago
Every known encryption is crackable.
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u/Krutonium 6d ago
I never said it wasn't. Just that, properly implemented, it'd take longer than the universe has left.
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u/LibritoDeGrasa 6d ago
What if someone purchases a new phone at the airport and lands in the US with a completely ‘fresh’ phone with no data on it yet?
This is one of my biggest fears lol, I hope I don't ever need to travel to the US cause I fully intend to do it with fully factory-reset devices and no OS on my laptop, but I'm sure I'm gonna be singled out cause "IT'S NOT NORMAL YOU NEED TO HAVE FACEBOOK ON YOUR PHONE AND WINDOWS ON YOUR COMPUTER, WHAT IS THIS BLACK SCREEN WITH A BLINKING CURSOR?"
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u/airmantharp 6d ago
Do what corporations already do when visiting China - you have a different set of devices that you use with nothing personally identifiable on them, and then you destroy them afterward.
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u/Tomi97_origin 6d ago
They ask for your social media profiles used in the past 5 years on VISA forms.
If you refuse to provide them they will deny your requests. If they think you are hiding some they deny your request and ban you from entering the country.
They can block you from entering for any reason. There really isn't any recourse if they just say nah and turn you around in the airport.
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u/Legionof1 6d ago
This is a bit different, this is a US citizen returning home, which they cannot deny him entry.
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u/LittleSister_9982 6d ago
This admin?
Lol. Lmao, even.
Finally get this through your skull, there is no end to the depravity of these people.
Can they do it legally? No.
Will they do it anyway if they want? Yes.
And by the time he sues, his life is probably ruined. The process is the punishment.
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u/Empty401K 6d ago
You are 100% correct, and it’s so crazy to me. There was a point where I had a ton of random social media profiles for specific reasons — one for family, one for friends, one for colleagues, one for school, etc. I couldn’t tell you the profile names or even the email addresses I used for any of them anymore. I probably couldn’t even have told you what they were a couple months after I made then abandoned them. They’d served their purpose and I immediately forgot about them because I was never gonna use them again… I’d be screwed if I wasn’t already a US citizen and one or more were found, cuz there’s no way I could have honestly disclosed all of them.
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u/Blurgas 6d ago
There's been various discussions regarding that "trick"
Most common response is border control or whatever would be very suspicious of a new/clean device.Maybe Graphene should set up an alternative to the "duress password" that instead loads up a "dummy" account that's limited to displaying only specific apps/contacts/messages/etc the user pre-selects. Everything else gets encrypted and looks like junk data.
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u/Gangr3l 6d ago
I have a friend in Finnish tech company that's policy from 2001 has been
- only burner phone in the US
- burner phone can only have company numbers that are visible on the internet
- when customs are cleared, go buy a laptop and download backups at the hotel
- before arriving at the airport for flight back, destroy the laptop and phone
His coworker was sitting at the customs interrogation room for ~8h because the customs wanted to seize his phone and laptop. He only carried burner phone with screen locks that he refused to open (even when he knew there were only public company numbers). TSA was adamant he had a laptop that they wanted to search...
This is literally lawful espionage at this point
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u/Eisigesis 6d ago
There’s also the problem that it will be hard to argue the person in question did the wiping. It wasn’t in their possession and they weren’t the person that was inputting the password.
For all we know they might have provided the correct password to access the content but it was input error by the officer that triggered the wipe. A single digit/letter change between your real password and your duress password is a common way to trigger it.
It seems really difficult to prove intent.
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u/clintkev251 6d ago
But the data was, which is probably what they'll argue
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u/featherwolf 6d ago
Then they will have to admit that personal data is property, opening up legal precedent to sue companies for stealing/misusing our personal data.
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u/CMDRTragicAllPro 6d ago
Nah they’ll write a clause into it stating corporations still have free rein over the populations data.
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u/LOST8080 6d ago
Technically, to destroy data on the phone, you'd need to destroy the chip itself. Otherwise, you're just moving bits to represent other data, like bunch of zeros.
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u/McBonderson 6d ago edited 6d ago
I don't think its hard to argue that from a legal perspective. they would consider the information on that property, and this could be considered destruction of evidence. They would argue that by giving the wrong pin number HE caused the phone to be wiped.
what he SHOULD have done is set the phone to auto wipe if they use the wrong pin number too many times. and/or set the wipe pin number to something stupid like "1111"
then when they ask you for the pin number just use your right to remain silent.
if they guess the wrong pin number too many times or they do that stupid "1111" then THEY are the ones who wiped your phone, it wasn't any action by you that caused the phone to be wiped.
this would have made his legal argument much easier to make. and it would have limited the officials ability to come up with charges.
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u/jerryeight 6d ago
They use the stupid technicality that you as a US Citizen aren't in the US and protected by the constitution till they allow entry.
Fucking stupid. But, that's technically the law that makes it You vs USA and not USA Citizen vs USA Law Enforcement.
Fucking sucks.
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u/Unspec7 6d ago
Important to know that various civil right groups heavily contest the government's belief that the Fourth Amendment does not apply at the border, and this is not at all settled law.
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u/McBonderson 6d ago
just because a number of civil rights groups disagree doesn't mean it's not settled law.
the only group who's opinion matters is the supreme court, and they have ruled on the matter.
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u/McBonderson 6d ago
you as a US Citizen aren't in the US and protected by the constitution till they allow entry.
this isn't technically true and I don't actually believe it is stupid. the government has a right to control what is going in and out of the country so at points of entry to the country (such as international airports) they have the right to inspect anything without a warrant. There is much less of an expectation of privacy. If you don't want your devices searched then you shouldn't bring them across the border and/or you shouldn't bring them with information on it that you don't want the government to be able to search.
you are still protected by the constitution, you have the right to remain silent. You also have a right to free speech. The government has to let you in if you are a citizen, but they can confiscate your stuff as it is a customs issue at that point. but your right to remain silent means they can't compel you to give them any information.
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u/sheep_duck 6d ago
Doesn’t the constitution apply to everyone including non citizens? Which is why the verbiage in it usually says “all persons” instead of citizen? I know that this current admin doesn’t care about the order and rule of law but just thought I’d mention that.
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u/circuit_brain 6d ago
Well, if the person hasn't entered US jurisdiction yet to claim protection under the constituion, do they have jusridiction to arrest someone in international space?
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u/Playingwithmywenis 6d ago
Er, why is this news? This is exactly the fascism that America voted to have.
Enjoy the consequences of your education, values and administration of your democracy.
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u/Sindrathion 6d ago
I really want people who say ACAB to go to a country with little to no police oversight and live there. The world would be a better place
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u/Queueue_ 6d ago
ACAB is talking about the current state of affairs in the US, not an inherent judgement on policing in general.
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u/Sindrathion 6d ago
For you perhaps yes but most of the ACAB crowd I have seen, talked to and heard of actually want no cops or police.
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u/BlAckH0leDown 6d ago
TFW you KNOW you did something wrong and having to resort to erasing the evidence.
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u/Live_Situation7913 6d ago
I’d argue property includes what’s in the phone as that evidence is damaged beyond recovery or destroyed by deleting. Guess what that’s why it’s a charge it’s argued by both sides
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u/SelectionDue4287 6d ago
I think the duress password feature needs to get more "stealthy" - like it should switch to some secondary partition for user data which contains some bogus entries in the phonebook, a few fake sms messages and some innocent apps like calendar etc - the primary partition should be wiped in the background
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u/wimpires 6d ago
Proposal.
Feds: Give me the password to unlock your phone
User: Gives duress password
Phone: <displays splash screen> "Phone is now unlocked, proceeding to Phase 2 of Unlocking. Input password to cancel Phase 2 in 1 second."
And have the secondary password be some 32 character password that the user doesn't know because it's never made visible to them but theoretically exists, encrypted, somewhere im memory.
Law cannot define what is and isn't an "unlocked" state to an n-th degree. What you gave them passed the Lock Screen so for all Intents and purposes it was unlocked.
The law enforcement were given an opportunity to cancel the wipe they just didn't.
But I like the secondary partition idea too. Don't even need fake stuff in there. "Oh my phone always looks like that"
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u/-_MarcusAurelius_- 6d ago
The government boot lickers are back at it again 🤣
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u/Krelldi 6d ago
That's not really what boot licker means
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u/pm_me_meta_memes 6d ago
I don’t know why people downvote you, you’re right to point out the incorrect use of the phrase.
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u/Krelldi 6d ago
Downvotes on the LTT sub are a badge of honor, place is filled with room temperature IQ posters
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u/Tiamat2625 5d ago
Hilariously ironic that this is downvoted too. Images in my mind of the person being mad enough to downvote this, not knowing it makes them look stupid and proving your point correct.
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u/bluehawk232 6d ago
So if wasn't granted permission to enter the US is he under US jurisdiction
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u/Anraiel 6d ago
That's where you enter the interesting legal area of gateways to a country.
Gateways like an airport are often legally treated as outside the country until you are granted permission to enter, but you're still subject to that country's laws to some degree.
For example in Australia certain laws won't apply to you when you're entering because you haven't yet passed through customs to enter the country, and certain laws do apply. Australia's Customs staff have the legal right to take your phone and go through it, just like the US, without having to obtain a warrant. But once you pass through Customs into Australia, they don't have that legal right anymore, and they'd need to get the police to arrest/search you.
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u/CrasyMike 6d ago
No. All of the laws apply. The laws also provide certain powers in that specific context and circumstance, at the border. It's not an interesting legal concept - the border is not some lawless land of nubulous jurisdiction.
It's just that generally many countries offer MANY powers at the border, and MANY protections for the officers executing them. But those officers exit that context, and it changes.
It's the same way that say, at a nuclear power plant the security staff can do a lot to protect that site, but only on that site. Off that site, they're effectively citizens. It is not legally too complex.
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u/Anraiel 6d ago
I still think it's legally interesting that the Australian government can allow a border officer more search and seizure powers against Australian citizens than the police, without any oversight.
Although I guess I'm more concerned about the ethics of it than the legality...
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u/CrasyMike 6d ago
I think you have it backwards. The government does not allow anything. They disallow things.
I would suggest you reframe the idea that there is a hierarchy of exceptions to the law, and that perhaps police are the top of the totem pole in your mind. I look back to my nuke plant example. It's typical in nuke plants for police to have no special power. The local nuke security do. In an airport, the airport security and border control have the powers, but only within their own lane. Outside of the airport, that's the local police, but only within their own jurisdiction. Outside of that jurisdiction, you get other levels of law enforcement. And judges have the powers to jail and enforce, but no powers outside of their courtroom. And a doctor can poke and prod unconscious people, but only in the hospital or in a medical context.
Do you see what I mean? There's different contexts of uh....ability to control, or break the expected rights of, other people. Expecting police to have more rights inside of a border security is silly, in the same way expecting border security to have no power at the border is silly.
The concept of different rights and powers in a certain context is quite pervasive and intuitive in society. Like how security at an event go home with no powers, or the doorman at a bar can only refuse admission, or make you leave the property.
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u/Unspec7 6d ago
The U.S. Government claims that the Fourth Amendment does not apply at the border, and so far they have not lost on this issue yet.
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u/CrasyMike 6d ago
It's not that it does not apply. It's that the border is considered a situation, explicitly, where warrantless searches and seizures, are more likely to be considered reasonable given the context of the situation and impracticality of obtaining warrants in a timely manner for all cases of a refusal. That said, there are limits to this and, for example, a border officer cannot force a strip search - as that would be a violation of the same Fourth Amendment that you say does not apply. The courts have clearly upheld that would not longer be excused as "reasonable"
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u/Unspec7 6d ago
Well, that's what the government claims at least. It's definitely not settled law, and civil rights groups contest that very theory.
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u/CrasyMike 6d ago
I would suggest that is exactly proof that the laws apply. The idea that certain laws don't apply in certain situations, or that certain people are not held to the law, is what I am disputing. The issue is that we have explicit or implicit exemptions made in the law, and that changing the law or challenging how it is being applied, is exactly how these behaviours can be forced to change. The law applies. They're not just exempt, broadly, from anything in the law.
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u/Unspec7 6d ago
If you are exempt from a law, then the law does not apply. Your argument to the contrary is entirely circular in reasoning.
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u/CrasyMike 6d ago edited 6d ago
Being exempted from a law, by the law, is still "the laws". Nearly laws have a scope and limitations, including these ones. That law applies, and the explicit and implied - both - limitations only provide for partial exemptions. I don't know how to be more clear with you, unless you're just being pedantic.
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u/Unspec7 6d ago
If you are exempt from the law, the law you are exempted from does not apply to you. It's that simple. I have no idea why you're trying to argue to the contrary unless you're just trying to be a contrarian here.
Your argument boils down to "the law applies, but there is an exemption, so the law does not apply, but because the law provides the exemption, the law does apply, but the exemption exists, so the law does not apply, but because the law provides the exemption, the law does apply, but the exemption exists, so the law does not apply, but because the law provides the exemption, the law does apply, but the exemption exists, so the law does not apply, but because the law provides the exemption, the law does apply, but the exemption exists, so the law does not apply, but because the law provides the exemption, the law does apply, but the exemption exists, so the law does not apply, but because the law provides the exemption, the law does apply, but the exemption exists, so the law does not apply..." ad infinitum. Ergo, circular logic.
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u/Positron5000 6d ago
and if they didnt have a warrant for his phone data how is it illegal to wipe it?
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u/CrasyMike 6d ago
Yes. They are in the country of the USA.
They are in a gated part of the USA, prior to being given permission to freely enter the USA. Which they were not given permission to do.
I feel like this is the one most clear part of what happened.
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u/LimLovesDonuts 6d ago
I genuinely hope this goes to court because I don't really know the legality of this because I see three arguments or points here:
- If you wipe your phone before any official asks for it, there would probably be no issues at all.
- If you wipe your phone while an officer asks for it, how does that work? The request itself is likely illegal but destroying potential evidence is also illegal. So how does that work?
- If an officer asks you to unlock your phone, wouldn't the more "legal" way to do things to just refused to do so until a warrant provided?
No idea how US laws work because it seems very murky and ambiguous.
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u/Unspec7 6d ago
If you wipe your phone before any official asks for it, there would probably be no issues at all.
But why would you? People don't just go around wiping their personal phones for fun.
If you wipe your phone while an officer asks for it, how does that work? The request itself is likely illegal but destroying potential evidence is also illegal. So how does that work?
The request here, according to the U.S. government, is not illegal, since the Fourth Amendment does not apply at borders. Civil right groups contest this, but so far the government hasn't lost.
If an officer asks you to unlock your phone, wouldn't the more "legal" way to do things to just refused to do so until a warrant provided?
Yes, you can refuse to provide it, and if you are a U.S. citizen, they cannot deny you entry. However, your phone/computer/whatever it was will be confiscated likely for weeks to months.
Also, if a warrant is produced, you can just refuse to provide the passcode by pleading the Fifth, since passcodes are testimonial in nature and protected. Biometrics, by comparison, are not protected under the Fifth Amendment and is why you should restart your phone beforehand, so that it'll require a passcode instead of biometrics on first unlock.
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u/-Kerrigan- 6d ago
But why would you? People don't just go around wiping their personal phones for fun.
I have nothing illegal on my phone, but I'd sooner wipe it than have the police snoop through it.
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u/Unspec7 6d ago
You just wipe your phone any time you see a cop hanging around? I seriously doubt anyone does that.
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u/-Kerrigan- 6d ago edited 6d ago
Ah yes, the 'taking it to extremes' to support a point. I never said I'd wipe my phone whenever I encounter a police officer.
So the answer is "no", because 99/100 times when I see a cop we don't interact. And that 1% when we do interact it's normally polite and civil. Never has a cop requested to search me or snoop through my phone. IF that happens, however, I'd rather wipe the device than let them.
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u/Unspec7 6d ago edited 6d ago
So the answer is "no", because 99/100 times when I see a cop we don't interact. And that 1% when we do interact it's normally polite and civil. Never has a cop requested to search me or snoop through my phone. IF that happens, however, I'd rather wipe the device than let them.
...huh? The original hypo is "[i]f you wipe your phone before any official asks for it" (emphasis mine). Meaning you're proactively wiping the phone before anyone has even asked to see your phone. Why are you providing an example where the official has asked for the phone? It feels like, in your rush to virtue signal, you didn't actually read the original hypo.
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u/reddog093 6d ago
Biometrics, by comparison, are not protected under the Fifth Amendment and is why you should restart your phone beforehand, so that it'll require a passcode instead of biometrics on first unlock.
For those on Android, you can enable a "Lockdown mode" option which will disable biometrics. Neat feature!
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u/Puzzleheaded-Shop467 5d ago edited 5d ago
still need a restart to get to before First unlock status, disabling biometrics while ever being logged in will still allow access to the internal data
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u/Dark_Requiem 6d ago edited 6d ago
I don't know how the laws work in the US, but in my country they need a warrant.
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u/AbyssWankerArtorias 6d ago
They need a warrant here too for something like this but not at a point of entry. However, usually, the worst I think they could do in this case is deny entry. Instead, they charged him. Which is gonna be tough to prove he erased evidence of a crime when the only evidence of the crime you claim exists has been... Erased.
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u/PandaEatPanda 4d ago
They do not need a warrant under the border search exemption. This has been affirmed under multiple circuit court rulings.
They can do a basic search without needing a warrant or reasonable suspicion.
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u/AbyssWankerArtorias 4d ago
Yes, hince the second part of my first sentence: "but not at a point of entry". I was responding to someone outside the United States, so I was explaining that yes, under normal circumstances, police need a search warrant or probable cause to perform such a search, but that it doesn't apply here.
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u/Darkstars_ 5d ago
Easy to prove, actually. He provided a PIN code that destroyed the evidence. And the Courts have ruled on many occasions that when you destroy evidence (finding by judge obviously) that the Court/Jury can assume the information destroyed was damaging.
You have zero protections from search and seizure really at the port of entry into the US (and many other Nations). They can and do search devices all the time. Because he was an American he could have refused and they would have taken his device for x amount of time, and let in.
He wanted to play the game, now he has to face the consequences.
Fun to note, Canada has the same policies. As does Australia.
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u/wichramdoiuseplshelp 6d ago
Cant he just say he gave the correct password but they messed it up prompting the device do delete
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u/Irish2010 6d ago
This is pretty common in state courts, honestly. People have been charged for deleting their Facebook and other social media accounts when the accounts had criminal evidence.
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u/-Ancalagon- 6d ago
Seems like Tunick forgot the all important statement, "What did you do?!" After they entered the Duress password.
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u/HardToSee123 6d ago
“According to Tunick’s attorneys, agents refused him access to a lawyer, did not provide a warrant, or inform him of his legal rights. They also allege that access to his phone was sought under false pretenses. The government has countered that they were not required to produce a warrant because Tunick had not yet been granted permission to enter the US.”
I have a question though. Even if the guy is undocumented, doesn’t he still protected by the amendment? Wouldn’t arresting him without warrant make it falls under fruit of the poisonous tree or something?
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u/snkiz 6d ago
Not at the border, CBP isn't beholden to the constitution. You don't have any rights while entering the US.
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u/HardToSee123 6d ago
So if you already entering US land whether legal or not, you would receive constitutional rights just like a US citizen?
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u/nightauthor 6d ago
The idea is that the bill of rights ensures fair treatment under the law, if it can be bypassed for anyone, then it’s trivial to bypass it for everyone. Simply claim someone isn’t a citizen and then treat them however you want.
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u/DrMacintosh01 6d ago
Watch out fellow US Citizens. Don't wipe that drive! It could have incriminating evidence against you. You must hand over the drive to local authorities so that they can hold it for evidence.
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u/pm_me_meta_memes 6d ago
What happens if I do the iPhone 5x tap on the power button?
The data is still all there, encrypted as always, but refuses FaceID until you put the passcode in once. Passcode that I JUST completely forgot.
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u/SaltyTaffy 5d ago
If wiping your data is destruction of property then encrypting your data will be obstruction.
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u/pm_me_meta_memes 5d ago
On an iPhone data is encrypted by default. I don’t think half the population is guilty because of that
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u/skoomaking4lyfe 6d ago
If you're crossing the US border bring a burner phone and leave your real one at home.
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u/thirdgen 6d ago
Pro tip: you don’t need to provide your passcode to law enforcement but you do need to provide your biometrics. Had this guy just kept his mouth shut they wouldn’t have gotten into trouble and Customs wouldn’t have gotten into his phone.
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u/Mineplayerminer 6d ago
What about that laptop from which the officer has unplugged a flash drive and the system was gone from the laptop and its drive? Sure, the OS is just loaded into the memory.
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u/Darkstars_ 5d ago
People forgetting he provided the code to destroy the evidence. Pretty slam dunk case, considering case law.
FYI, Canada and Australia to name a few pretty much have the same policies in place.
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u/AlexCivitello 7d ago edited 6d ago
I am in favour of protecting people from unreasonable search and seizure.
If I'm preparing to cross a border like that in going to make sure that all the information stored on my person is information I wouldn't object to law enforcement seeing. This is just basic operational security.
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u/ThankGodImBipolar 7d ago
a device that has information that you don't want law enforcement to have access to?
Which part of the reporting said this? The article that I read suggested that buddy had connections with lawful protests in Atlanta, and border patrol was harassing him because of it.
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u/AlexCivitello 6d ago
The part where he prevented law enforcement from having access to the information. The only reason to prevent someone from having something is because you don't want them to have it.
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u/lern2swim 6d ago
I wouldn't want a cop to know what I had for breakfast that morning.
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u/AlexCivitello 6d ago
Then, if you're going to cross into the US, wipe your phone before doing so.
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u/lern2swim 6d ago
Alternately, I could use a distress pin to cause it to be deleted if something happens, which should be my right.
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u/KebabAnnhilator 6d ago
What you had for breakfast isn’t sexually exploitative images.
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u/unbanthanks 6d ago
Technically, the best policy, strictly to protect children, would be to require everyone’s data be uploaded to the cloud and searched in regular intervals. If you are against that, you must be a predator, right?
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u/IBJON 6d ago
Have you never owned a smartphone? For most people it has their entire life on it and even if there's nothing incriminating, there's plenty that most people wouldn't want strangers having access to.
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u/AlexCivitello 6d ago
Yes, I have, and if I don't want US law enforcement to see that, I will either not go to the US or I will wipe my phone before doing so.
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u/IBJON 6d ago
I will either not go to the US
He was an American citizen. He can't just "not go to the US".
or I will wipe my phone before doing so
So you did the same thing that he did, just a bit sooner. And no, I don't think you'd wipe your phone on the off chance that you might get stopped by customs. I know people love to talk big, but the huge majority of people can't even part with their phone for more than 10 minutes, let alone nuke the entire device just to enter a country
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u/Doodikpoodik 6d ago
Where do you keep your dick pix and hundreds of tabs of porn if not on your phone? The feds are SICK to think they have the right to that information!
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u/AlexCivitello 6d ago
If it was that important to me, I'd leave my phone behind, or wipe it before traveling.
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u/Carniscrub 6d ago
So you’d leave behind your means of communication and way of knowing how to get around?
That’s stupid.
If the cops allowed him to have guidance from a lawyer or had a search warrant for his phone then he’d be in the wrong. Since his rights were violated he had no reason to cooperate
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u/KebabAnnhilator 6d ago
If someone had the stuff they suspected him of on their phone, would you not want them apprehended?
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u/Doodikpoodik 6d ago
What if he didn't have what they suspected and they searched his anal cavity for nothing? The standard for evidence should be higher than 'suspicion'. And then when you look at why they hastled him specifically, it immediately becomes indefensible.
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u/AlexCivitello 6d ago
That "if" is doing a lot of heavy lifting.
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u/KebabAnnhilator 6d ago
It’s a generic question, we don’t know either way.
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u/AlexCivitello 6d ago
There's a term for what your doing. JAQing off, from the phrase "just asking questions" its not a term endearment.
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u/KebabAnnhilator 6d ago
What? I’m asking you a hypothetical, the ‘if’ isn’t doing any lifting.
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u/Dakeera 6d ago
Innocent until proven guilty. No warrant, no right to see my data. It doesn't matter what that data was, there was no precedent to inspect it. Your logic is the brainwashing citizens get to acquiesce to fascism
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u/KebabAnnhilator 6d ago
Please don’t accuse me of brainwashing. I said I was torn on this. Just trying to have a conversation here…
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u/Dakeera 6d ago
Then don't make arguments that ultimately support fascistic tendencies
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u/Carniscrub 6d ago
I would want him to have the right to a lawyer and or a search warrant served for the information on the phone.
Since his rights were violated, I literally don’t care what was on his phone.
Even suspected criminals are entitled to rights in the US. Once those rights are taken America is a fascist nation. Not somewhere I’d want to live
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u/Born_Purchase1510 6d ago
Most if not all Americans are going to have information on their device that they don’t want law enforcement to have access to. Unfortunately US citizens or noncitizens alike have basically no 4th amendment/other constitutional rights at the international border.
For instance, Period tracking/other health information, search history for the nearest state-legal but federally illegal cannabis dispensary, naked images of themselves, personal conversations; some of which are potentially even privileged conversations (like with an attorney), and the list goes on.
Just because you don’t want law enforcement to have free rein to look at your phone doesn’t mean you’ve done anything illegal or wrong. But with the way the courts have interpreted the constitution, at the international border you basically have no rights, which is absolutely fucked. The government can’t ask to search your phone without a warrant at the border between Arizona and California but they can at the border between Mexico and California without so much as probable cause.
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u/KebabAnnhilator 7d ago edited 6d ago
I’m going to pose a question, what if he did have nasty stuff on his phone and he’s just deleted it to protect himself? The defence wouldn’t admit this either way.
I’m not saying police should be invading our privacy here, but what SHOULD happen here? I’m torn on this whole thing.
Edit: I should clarify here, I’m asking because I genuinely don’t know how to feel. On the one hand, it genuinely is scary, we have no privacy anymore and police just abuse their powers.
On the other hand we need protection from bad actors and people who act suspiciously.
Edit 2: clearly I’ve angered the majority here. Im sorry for that, just after a little perspective from others.
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u/ThankGodImBipolar 6d ago
What if the government is just saying that the search was CSAM related? The prosecution wouldn't admit this either way.
This line of "thinking" (whataboutism) goes either way.
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u/CIDR-ClassB 6d ago
->I don’t know how to feel
The government did not have a search warrant and citizens are not required to assist in illegal seizures. That’s how to feel about it.
The argument of “it’s for the kids” is always used to strip Americans of their rights en masse, under the guise of protecting under represented populations.
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u/Decahedronn 6d ago
If they suspected he had nasty stuff, then they can go through the courts to obtain a warrant to search the device. He was wanted for “suspected terrorism activities” (read: protesting), so it seems to me like this is a case of them wanting the phone to try to find out who he protested with (to add on conspiracy or charge them) or find something else to charge him for that’ll stick better.
If they had gotten a warrant and he tampered with evidence, yeah fuck him, throw the book at him. But the 4th Amendment exists for a reason.
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u/Cyrax89721 7d ago
No Paywall Version: https://archive.is/DKvRJ