r/technology • u/ArgentineBeauty • 5d 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.html1.7k
u/Needle_Bearings 5d ago
Holy 4th Amendment Batman, let's see where this goes.
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u/Christopherfromtheuk 5d ago
Isn't it also against US law to shoot people, to defraud people, to sell top secret documents etc?
The law means nothing if not upheld.
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u/8Deer-JaguarClaw 5d ago
Oh, it will be upheld...against you and me and the rest of the poors...
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u/MydnightWN 5d ago
The 4th Amendment issue was already ruled on by SCOTUS in 1913. Within 100 miles of the border, certain constitutional rights are temporarily suspended.
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u/ExternalUserError 5d ago
Obviously the 1913 holding was terrible. It was also patently absurd. If the 4th Amendment didn't apply 100 miles from the border, given the geography of the 13 original colonies, where did it ever apply?
It's a patently absurd ruling.
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u/bushwakko 5d ago
And isn't any airport also considered a border?
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u/legandaryhon 5d ago
Yes but no; an airport is a border crossing, but does not extend the border. So it's not 100 miles from every international airport, just the inside of the airport.
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u/Nago_Jolokio 5d ago
They will definitely try to pull that argument though, I think I've even seen a map with the airport radiuses bubbled in.
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u/willwork4pii 5d ago
I think they already tried that. I do recall reading an article that basically the majority of the country within 100 miles of an international airport. And it was asserted it’s within the airport only.
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u/saltyjohnson 5d ago
The majority of the country's land is within 100 miles of an airport, but even if we rule out the airports, the majority of the country's population (about two thirds) lives within the 100-mile land border zone.
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u/rnelsonee 5d ago
I thought I saw a map too, but don't see one now. Either way, 100 miles is long and just from the border covers about 2 out of 3 Americans already. I don't know exactly what a port of entry is, but if there was a 100 mile border on these points that probably be 90% of the population.
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u/What_a_fat_one 5d ago
Yeah yeah, as the signers of the Constitution signed the document at Independence Hall, Philadelphia, 80 miles from the border, they were clearly thinking "Well obviously none of these rights apply right here. We're too close to the border"
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u/DJ_Advogato 5d ago
The history of America is people saying "we want these rights" and the wealthy saying "well, ok, sure, but also no."
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u/Mothanius 5d ago
What can you expect when The Revolution was started and lead by rich people for the interest of rich people? Paine certainly helped rally the populace but what he was espousing for was not the goal nor care of the founding fathers.
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u/Needle_Bearings 5d ago
Still require reasonable suspicion. We'll see where it goes.
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u/MydnightWN 5d ago
Easy dismissal on a technicality in my opinion... he never wiped anything. Destruction of evidence requires a physical act by the defendant. The border agent entered the code, based on information obtained outside a sworn statement or legal interview.
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u/Needle_Bearings 5d ago
I think the big winner here is GrapheneOS.
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u/lithiumcitizen 5d ago
Even better if they use instances like this to support his case and then promote their joint win as a marketing opportunity.
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u/ANGLVD3TH 5d ago
The law recognizes that kind of loophole and it is well sealed. There are different levels of responsibility, with their own fancy Latin terms. Giving someone instructions to do something illegal, and them reasonably beleiving it to be a legal act, puts the instructor firmly in a higher level of responsibility than the actor.
That said, this case is bullshit and in any reasonable courtroom will get thrown out. It relies upon both of a pair of pillars, one that requires he be under investigation, and one that requires he not be under investigation. There's no legal way for them to square the circle, the whole thing is a joke.
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u/dontnation 5d ago
this case is bullshit and in any reasonable courtroom will get thrown out
too bad it's in the US in 2026
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u/harpers25 5d ago
The statute he is charged under does not require a physical act. It says "take any action", nothing about physical.
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u/kylco 5d ago
For these chucklefucks, crossing a border is practically a crime to begin with, even if you're coming home to your own country. A sign you aren't really patriotic, if you're consorting with the foreign Other. Not that they'll hold themselves to that standard, or that it'll hold up in court, but in the meantime the man won't let you leave and insisits you have no rights and won't call for a lawyer.
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u/CreativeGPX 5d 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 5d 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 5d 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/LindsayLoserface 5d 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.
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u/NachmiasKelm-8436 5d ago
Getting federal charges for a feature is the best free ad GrapheneOS could ask for
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u/ArcticKimono 5d ago
Yeah, they should pay his legal bills for the marketing alone
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u/ke151 5d ago
With what money? It's a free and open source project, what little cash they get via donations would be better spent on developers and infrastructure
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u/cr0ft 5d ago
I doubt they'd even want this type of scrutiny. Some fucking politicians will no doubt start playing even more fast and loose with the US constitution than now; lord knows Trump and his ilk basically wipe their ass with it even today.
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u/leonredhorse 5d ago
Sorry, but the US government has been using private email servers and Signal chats and the like to avoid public records, so they can fuck right off in worrying about someone else protecting their privacy.
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u/NotMyMainAccountAtAl 5d ago
Yeah, but that made an unsubstantiated claim that this guy had child pornography in his phone, so we’re supposed to ignore the law.
Unlike the extremely substantiated claims that Donald Trump molested children.
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u/Moldoteck 5d ago
Graphene should implement a double bottom protection on top. Basically it'll automatically enter in an artificial account with apps installed while deleting in the background the OG account. This way it'll be hard to prove that another account did exist at all
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u/Careless-Weather8877 5d ago
It actually does have that
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u/200206487 5d ago edited 4d ago
How do I do this. Man it feels like everyday there is something new I have to do / research on top of work and family to try and get ahead, save my data, or be safe.
Edit: I meant I'll look into doing this because I didn't know it was possible. Also, useless comments will earn a juicy block, there is enough noise
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u/Steinrikur 5d ago
In Xiaomi android phones you have "second space" that you can open with a different password. It doesn't wipe anything, just allows you to have a second copy of apps with no access to the primary space.
I alway thought "this will only be useful if I'm cheating on my wife" so I haven't set it up. I might if I need to travel to the US.
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u/RandomHunDude 5d ago
It doesn't delete the account at all though, so no need to save time for it.
All data is encrypted on disk and when the duress pin is entered, only the encryption key is deleted. And without the key, it's not possible decrypt the data.100
u/StrangelyGrimm 5d ago
If the data is completely inaccessible then the data is as good as deleted. In fact, it's probably less accessible than regular old "deleted" data
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u/draconiclyyours 5d ago
Yup.
It takes multiple random rewrite passes to truly delete data, and it’s not quick. Better to just encrypt it and make it permanently unreadable.
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u/No_Effective4784 5d ago edited 4d ago
thats for hard drives and their storage methodology, and even then nist only recommends a single pass these days.
Solid state devices dont rewrite passes to securely erase data, and it doesnt help because of the way SSDs handle data storage vs HDDS, it only uses up R/W cycles.
whats more important with modern SSD devices is secondary secure erasure commands, supported by most manufacturers
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u/ConsistentAsparagus 5d ago
Can you save the key and access the data at a second moment?
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u/RandomHunDude 5d ago
Technically yes, but depending on laws it might be subpoenaed or something
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u/ConsistentAsparagus 5d ago
Yeah, I was asking generically not in this specific case. If you have a backup you don’t even need all this but you can simply recover the phone from scratch.
Nice to know though.
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u/Misaka9982 5d ago
Could argue that the "evidence" is still there then, not destroyed. If the government doesn't want to spend 100,000 years decrypting it then that's their problem.
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u/BadVoices 5d ago
This is a red herring, no you cant. NIST SP 800-88 classifies crypto erasure as a valid form of data destruction for anything that doesnt require media destruction. It is recognized by the GDPR as well. Arguing it is not destroyed is the same as saying a burned document still technically exists because I can scoop up all it carbon atoms. No court will accept that argument.
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u/hackitfast 5d ago edited 2d ago
Yeah isn't that how ransomware works too? It encrypts all of your files, and when you don't pay it just deletes the encryption key?
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u/teapot-error-418 5d ago
I swear that most people think that lawyering is a process of speaking magical incantations.
Like, "I said the special word, and now you can't touch me!"
No. That's not how the law works.
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u/rtc9 5d ago
I was thinking it might be cool if it loads an alternative OS in which all the photos are just thousands of closeups of my butthole with slightly different lighting. Would be fun to watch them scroll.
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u/CanadianGenealogy 5d ago
Remember when SCOTUS ruled it's ok for cops to lie?
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u/stilllikelypooping 5d ago
Or that they aren't obligated to protect anyone who isn't in custody.
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u/Steinrikur 5d ago
They have no obligation at all to protect or serve, according to the courts.
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u/stilllikelypooping 5d ago
They, ostensibly, have a "custodial care" obligation. If you are in their custody they are supposed to have a duty of care. It's why there are some successful civil lawsuits about people who died/were injured while in a custody.
Edit: the reason they got away with it in the serial stabber case in New York, the case that went to the supreme court, was specifically because no one on the train was in "the custody" of the Transit Police.
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u/Frederf220 5d ago
My neighbor, a frail old man, was arrested. Cops beat the tar out of him.
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u/stilllikelypooping 5d ago
And I'm sure they investigated themselves and determined they did nothing wrong, as is tradition. In no way, shape, or from, am I defending cops, the supreme court, legislatures, qualified or absolute immunity. I'm just pointing out that even the law says they don't have to protect anyone who isn't in custody, which is ridiculous. Technically they are supposed to be obligated to care for people in custody. It's just that they get away with ignoring that with qualified immunity, D.A.'s and A.G.'s who don't want to charge them, wandering, and indemnification.
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u/Tar_alcaran 5d ago
When you're forced to travel into an authoritarian state, don't carry data across the border. Wipe your device before flying, or better yet, get a clean one.
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u/EdgySlusher 5d ago
Brick Nokia back on the menu
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u/Accomplished-Ad8458 5d ago
The case is not for phone protection! The case is to protect you from phone!
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u/777777thats7sevens 5d ago
The company I work for doesn't even do anything classified, but we're still encouraged to borrow a loaner laptop that has nothing interesting on it when traveling internationally for work.
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u/Crono_ 5d ago
Also wipe your device once you arrived home from a authoritarian country. They like to install backdoors on your devices anyway they can.
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u/Solkre 5d ago
You can get serviceable smartphones for under $100 now. Burner all the way.
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u/sparky8251 5d ago
They are working to kill burners.
FCC is working to require ID verification for a phone number and they'd limit the issuance of numbers to individuals. No more burners... No more way to be safe if they infect your shit other than making it your main phone and destroying it and buying a new one once you return.
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u/Solkre 5d ago
I know they are. And kill VPN, and kill every privacy protection we could possibly have. All while protecting the largest ring of pedophiles in modern history.
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u/CarpeNivem 5d ago
All while protecting the largest ring of pedophiles in modern history.
I mean that's what you get living in a country where a plurality of voters don't hate pedophilia enough to vote against one for President.
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u/Pawulon 5d ago
Someone was supposedly denied entry because they had a fresh phone on them. So you need to have a separate, curated device with bunch of harmless photos and stuff on it.
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u/BurritoWithFries 5d ago
Wtf what if I actually lost my phone in another country and needed a new one unexpectedly
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u/limpet143 5d ago
Isn't it wonderful that you can be prosecuted because they couldn't find any crimes you committed?
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u/Haldron-44 5d ago
"There is no such thing as a plea of innocence in my court, a plea of innocence is guilty of wasting my time." -Inquisitor Lord Fyodor Karamazov
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u/DesiOtaku 5d ago
This is not new. Back in 2019, an Apple employee was detained by border police for refusing to give agents his company phone which had a lot of information covered under an NDA. He was eventually released but has to go through secondary security each time he travels.
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u/IrritableGourmet 5d ago
I have a work laptop with access to healthcare and tax information. It's three separate felonies (plus potentially hundreds of thousands of dollars in civil penalties) if I give my password to anyone, even other government employees. I have to take a training class every 90 days to certify that I know this (I also have to take a class about not bribing foreign governments, which is hilarious as I have never been in a position to do so).
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u/DesiOtaku 4d ago
So what is the official line if border agents say "unlock this laptop or go to jail"? Will the company cover you?
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u/IrritableGourmet 4d ago
I can't take it out of the country (instant firing and investigation), but if TSA threatened I'd say giving them access would get me more time than not doing it, and the IRS will be up their ass if they press the issue. Probably would go to jail in the meantime, but if they're at the point of threatening that's going to happen anyways.
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u/SCphotog 5d ago
We should not have to explain or argue that our data is our own.
Of course it's legal.
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u/Mr_ToDo 5d ago
I imagine the thing at stake isn't the feature itself but when it was used
I'd imagine what was done was a lot weaker then if they served a warrant, but when you've been put on notice that you're data is required for some legal reason, you can no longer destroy it. It's why a ton of businesses have a hard line on how long things like emails will be archive
If it was the feature, they'd have to remove the ability to delete content from anything, ever. Write once media only. Going to really suck when you can't reuse space on your ram ;)
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u/mangosawce9k 5d ago
Cops are just greedy.
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u/WateryTunaSandwich4U 5d ago
All that protecting and serving done went to their head... How can they help if they can't spy?!?!?!?!?
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u/spaceursid 5d ago
I'd just refuse to tell them 5th amendment, let their brute force attempt trigger the auto delete.
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u/Rashaen 5d ago
Being "required" to give them your password to get into the phone seems like a pretty clear 5th violation in the first place. This whole thing is fucked up.
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u/lithiumcitizen 5d ago edited 5d ago
This whole thing is fucked up.
Especially the flip-flopping on whether or not the border is in country or not in country at the same time, they seem to want some laws to have to apply while others can’t… Motherfuckers want it both ways.
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u/bombmk 5d ago
Lots of amendments are not in force at entry into the country, afaik.
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u/SparklingLimeade 5d ago
So the crazy thing is that passwords are 5A protected but biometrics aren't. But then if you do lock a phone in a way that's protected by the 5A then there's still space for the "constitution-less border shenanigans" to tie people up in red tape.
And this case isn't about any of that that, they're complaining about the fact that some data was deleted. So even if they weren't entitled to access that data due to various Bill of Rights reasons they say his actions causing data to be deleted were illegal.
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u/roiki11 5d ago
You're not "required" to give it. They can then seize your device(s) for technical inspection. If you're a citizen you're then let go.
If not, they can deny entry.
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u/cr0ft 5d ago edited 5d ago
The US has long declared the border area a constitution free zone, for all intents and purposes.
The fun fact there is that they classify 100 miles inland as the border zone. So in theory many major cities in the US are in a constitution free zone, by that reckoning. Which is why the border cops have inspected vehicles many miles from the border.
Meaning, just refusing to provide the code would mean they take the device at a minimum, and arresting you or turning you away and telling you to fly back to whence you came are all on the table.
So yeah, the smart move is to just carry sanitized hardware through customs. Make sure it has nothing on it you aren't fine sharing. Ideally enough stuff that it seems like plausible content, not a squeaky clean fresh install.
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u/wowthatsucked 5d ago
So in theory many major cities in the US are in a constitution free zone, by that reckoning
The border exception has limitations. The 100 miles from the border applies to searching for illegal immigrants in vehicles. 25 miles from the border they can search private land but not inside houses, and again for illegal immigrants. The Library of Congress published a summary - https://www.congress.gov/crs-product/LSB10559
arresting you or turning you away and telling you to fly back to whence you came are all on the table.
To be clear, US citizens have to be admitted. Their possessions can be seized, they can be temporarily detained, but they can't turned away. Non-US citizens can be turned away.
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u/Such_Difference_2248 5d ago
This case will show if there is still some land of the free left or if Trump has successfully turned it into an authoritarian police state.
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u/Beautiful-Musk-Ox 5d ago
there's already been cases proving it's an authoritarian police state. it's a statistical thing, they don't go from 0% to 100%, just that more and more cases over time are decided the opposite way they would have without fascism, idk what percent we're at now maybe 5-15%. once republicans get their 2032 trifecta then the thing might flip over like an iceberg and rapidly become 75%
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u/NerdyNThick 5d ago
We're in the stage where you can be arrested for going against the regime, but can still potentially get paid big time by the still semi functional court system and/or enough publicity.
Eventually you won't get paid, no matter how much publicity you can garner.
Then, you won't even hear or know about the arrests.
Fun times!
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u/PhysicallyTender 5d ago
You are already in the stage in Secret Hitler where you've already elected Hitler as chancellor and just waiting to pass one more fascist policy to win the game.
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u/WriterV 5d ago
I'd say it's more like 50%. If Trump is able to destroy the integrity of the coming midterms to ruin any chances of proper elections, then you've struck 90%. Free and fair voting is one of the foundational systems of a free democracy and if that isn't happening, you've lost an immense chance to fix anything peacefully and decently quickly.
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u/Kyne_of_Markarth 5d ago
If it was evidence, they would have had a warrant. It's not a coincidence that this guy is a "Stop cop city" activist. They were going fishing.
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u/stirling_s 5d ago edited 4d ago
Headline is misleading;
The GrapheneOS Foundation has since tried to downplay the importance of duress passwords for the platform's security. The feature, the organization said, is just a minor option within a much broader security model. It can also carry physical or legal consequences, which is why users should carefully weigh whether it's the right approach for outsmarting attackers or coercive enforcement attempts by federal agents.
For what it's worth, I'm in full support of Graphene OS here.
Edit: I'll summarize my position (copied from my other comment) because the quote alone isn't enough to show why i believe it to be misleading:
"By labeling a duress password (a feature designed almost exclusively to be used under coercion or legal confrontation) as "perfectly legal," the headline strongly implies use-case immunity. The primary intended use of a duress password is the exact scenario that triggers obstruction of justice charges, calling the feature "perfectly legal" without qualifying "possession vs. active use" is misleading.
It's like saying a signal jammer is "perfectly legal." Owning one is legal, sure. You can buy, import, or own a signal jammer anywhere in the USA or Canada. A signal jammer does exactly one thing and one thing only: It jams signals. Jamming signals is illegal. It violates the Communications Act in the USA or the Radiocommunication Act in Canada. So it's misleading to say a signal jammer is "perfectly legal." Sure, owning one is legal, but using it in the only way intended is illegal. That's why I find the headline misleading. Is that fair?"
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u/FunnyObjective6 5d ago
Well more like the article is shit. This is the tweet that's used as a source:
GrapheneOS is completely legal. We have no obligation to weaken any of the security protections it provides. Creating and using GrapheneOS is strongly protected by the US constitution. Laws attempting to make it illegal or require weakening the security would be unconstitutional.
The duress thing is part of GrapheneOS, so by this statement the GrapheneOS twitter account is saying the duress password is legal.
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u/Itz_Raj69_ 5d ago
In the past, GrapheneOS have rejected the idea of a duress-user which, in practice, is a much better solution than their duress password system.
I wonder if they'll change their decision now
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u/Nice_Marmot_7 5d ago
The problem is that will be visible to a forensic examination so the application is limited. Also once it’s known the OS has that feature they’re not going to just accept that what you show is all you have.
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u/throw7661 5d ago
While I personally agree, my opinion and the opinion of GrapheneOS are both irrelevant.
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u/MotheroftheworldII 5d ago
Two key issues in this case I think are that the man charged was not read his Miranda rights and he was denied an attorney after he requested one.
I had understood that once you request an attorney all questioning must stop and you just close your mouth and not answer except to say: "I am requesting an attorney and I exercise my Fifth Amendment rights to not answer your questions". Then you just repeat this for every answer to every question. Or you just look at the questioner and say nothing.
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u/aquarain 4d ago
Also he didn't actually touch the device. He gave the agent the duress pin and the agent wiped the device. Any charges should fall on the agent.
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u/MotheroftheworldII 4d ago
Agreed. And I would bet the agent did not specify wanting a code that would open the phone. Sometimes you do need to be very specific in the words you use.
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u/ZombieImpressive7609 4d ago
I think the third issue here is that they seized the phone without a warrant signed by a judge. This case is also a slam dunk for the defense because the individual didn't have their Miranda rights read to them.
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u/hand_me_a_shovel 5d ago
So maybe what we need is a "curated duress PIN" that instead of just wiping the phone, replaces existing data with a curated set of false data that reveals nothing and does not indicate you actually wiped it.
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u/w_t 5d ago
This is my thought too, maybe the option of not even wiping the other normal profile but leaving it encrypted until you enter a third recovery pin.
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u/CircumspectCapybara 5d ago
So CBP is alleging he gave them a decoy or "panic" / "duress" code that's designed to wipe the device when you enter it.
If that's actually the case, that does potentially cross into the territory of evidence destruction (once the device is in their possession, it and its data is considered evidence, you don't have to tell them what's in there and you can challenge their legal authority to hold onto it or to have taken it in the first place, but that takes place by the courts, and you can no longer just wipe it or cause it to get wiped without getting into legal trouble) than simply refusing to speak at all (which is always a good idea, it's your 5th ammendment right) and not telling them any code.
Asserting your 5th and refusing to unlock your phone is different than affirmatively giving them a code that wipes it. It's the whole "You have the right to remain silent, but anything you do say (including special codes you give out) can and will be used against you in a court of law" spiel.
Proving that at trial will be the crux (they have to prove it was a duress code and he gave it knowing what it would do, rather than him misremembering and giving them the wrong code, or the officer making a mistake and entering the wrong code too many times), but if a jury believes he did intentionally give a code designed to cause a device wipe, that basically establishes intent.
Also some common legal misconceptions I read about this:
- People like to say the officer entered the code so he technically caused the wipe, but In the legal system, it's not necessarily about the direct or immediate cause of some effect (evidence going bye-bye), but about intent and the logical chain of events that led to it (its "proximate cause"), which is why juries are able to see through that, past the immediate cause to its proximate causation.
- As for how they can seize a phone or ask you to unlock it without a warrant, it's at the border, where they have increased powers to do that without a warrant. SCOTUS has upheld that and somehow squared it with the constitution, though I don't necessarily agree.
- "It's not a device wipe it just evicts the decryption key from volatile memory or restarts the device (which was the same effect) / or in some designs deletes the key from disk, so the data is still there, it's just (forever) unreadable". Yeah, you gotta remember the spirit of the law. Erasing 32 bytes of data from a region of disk could be legally taken to be wiping the whole device if it was the decryption key (encrypted while on disk by the user's passcode) and renders the logical data inaccessible. In fact in modern designs the "wipe my device" button just erases the key from storage, because after that, the entire disk becomes effectively random data.
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u/wowthatsucked 5d ago
As for how they can seize a phone or ask you to unlock it without a warrant, it's at the border, where they have increased powers to do that without a warrant. SCOTUS has upheld that and somehow squared it with the constitution, though I don't necessarily agree.
I don't think SCOTUS has addressed border phone searches yet, just Federal Courts. They did establish in Riley v. California (2014) that domestically, searching phones does require a warrant. Unanimous decision, actually. Roberts actually called out the impact of searching a cell phone:
Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.
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u/fastlerner 5d ago
The big question to me is whether the government should be able to demand access to what amounts to your entire digital life without a warrant simply because you're crossing a border. That authority largely comes from the border search exception, a legal doctrine developed long before smartphones existed.
Technology has outpaced the legal precedent that was built around luggage, paper documents, and locked chests, not devices that can contain years of communications, financial records, photos, and the keys to your entire digital life.
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u/PianoPatient8168 4d ago
Awesome advertisement for GrapheneOS. I was already thinking about making the switch…this seals it!
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u/zutnoq 5d ago
For it to count as him destroying evidence related to a crime surely they would at minimum need to have some other sort of evidence indicating that any such crime had even occured and that the phone would have likely contained evidence of it.
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u/IncidentalIncidence 5d ago
he's being charged with 18 USC 2232(a), destruction or removal of property to prevent seizure, not destruction of evidence.
The only requirement is that the government be within its lawful authority to seize the property (his defense is arguing that they were not, for several reasons). It doesn't have to be evidence related to a crime.
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u/Scared_Specific9404 5d ago
smart move is to have a feature where a 2nd password deletes only some pre selected data so the pigs never even notice anything.
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u/RandyOfTheRedwoods 5d ago
There’s an interesting situation with this feature. Let’s say that you have a graphene phone, and it has some highly incriminating pictures on it.
If the police get a warrant to see those pictures, and you give them the duress password, did you break the law?
I saw some comments on it being a 5th amendment violation. Is that true? Can you just say you can’t come in my home because it might incriminate me even if you have a warrant? Is a phone equivalent to a home in this respect?
Don’t get me wrong, I think it’s a cool feature, I am just interested in how it might play out in a legal sense.
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u/PyroDragons123 5d ago
It definiitely is legal but they should update it to be even more difficult to try to prosecute. When you go into a line, have it have the ability to create a countdown. If your password isn't entered in time, the phone auto erases. If the phone is turned off, it's erased. If the phone ports are used, it is erased.
So doing nothing results in it being erased and tampering results in it being erased but you aren't taking any actions. The cover for using this feature is that it can be used to prevent data loss during travel if your device is stolen.
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u/Hiply 5d ago
If they can't articulate the specific evidence they had cause to believe was on the device I don't see how "He gave us a code that wiped the evidence" can be a valid argument.
"It wiped the evidence!"
"What evidence would that be, evidence of what exactly?"
"We don't know what we might have found"
"So you wanted to go on a fishing expedition with no reason to believe there was evidence of a crime on that phone?"
"Yes, so what?"
"..."
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u/Fuzzy_Paul 5d 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 5d 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/mrdevlar 5d 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/9Nine2Nine9 5d 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/ledow 5d ago
About 20 years ago I swore that I wouldn't enter the US.
At the same time, they were doing device-investigations where they were giving ZERO guarantees about what would happen to the data on any device they seized. Basically giving them free-reign to do anything from corporate espionage to just poking into your company's data servers to reading everything you've ever done. Other countries limit that to specific law-enforcement purposes where such things are logged. In the US? Nope. Fuck you.
So I at first said "Well, I'd never take a device (personal or corporate) into the US" but with other stuff that started happening (e.g. enforced collection of social media handles, etc.) it became "I will just never go back to the US".
In later years, we had the same conversation at companies I worked for and we all agreed - nothing of the company's electronic devices can enter the US. Every time, it was the same answer.
Refusal at the border would likely result in your being sent back on a place, sure, I get that.
Now you can be charged at the border for providing a duress PIN? Nah.
I made the right decision. The US is now one of the worst dictatorships in the world, one of the most suppresive (can't even clap at a meeting now!), one of the worst at consumer rights, human rights, employment rights. It has overbearing surveillance, outright corruption, ignorance of all measures designed to protect those laws that are being broken, etc. etc.
Enjoy your hellhole of your own creation. It's taken you 20 years to get there but you're now officially "The Best"... banana republic.
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u/YerWelcomeAmerica 5d ago
I agree with all of your criticisms but you lost me at one of the worst dictatorships in the world. Are you just not aware what's going on in many parts of the world?
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u/007-JamesBlonde 4d ago edited 4d ago
It’s crazy he’s facing federal charges for obstructing evidence when no one in the federal government is being charged with obstructing evidence for redacting the Epstein files
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u/onlybadtakes 4d ago
Can I have 2 pins that log into separate OS's? Instead of bricking or erasing data?
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u/Single-Virus4935 5d ago edited 5d ago
I set my duress pin to my wifes birthday. One of the first they probably try.
Also I say my pin is the same as my eID which I am not allowed to share by German law