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Felony charges for citizen deleting phone data at US Border

nytimes.com

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Re: Felony charges for citizen deleting phone data at US Border

#91

Post by krapp »

tempodox wrote: post #85
jfengel wrote: post #83

Earlier quoted context omitted.

The original text is basically useless. They're more like a mission statement rather than directives. They set up broad aspirations, but the implementation has to be aggregated over literally millions of pages of judicial decisions. Even lawyers with extremely different ideologies will give you convergent answers in a lot of cases, even when those answers conflict with an apparently obvious reading of the original te…

> None of those words what you think they mean. And that alone is already a pretty scandalous problem. If the law is not stated in a way that ordinary people can understand, how the hell are they supposed to obey it? Those who cannot afford the highly paid law explainers are basically locked out of society.

I don't think you're entirely wrong, but the Constitution binds the government, not citizens. The government can damn well afford to know what the 4th and 5th Amendments mean.

Re: Felony charges for citizen deleting phone data at US Border

#92

Post by joshka »

OutOfHere wrote: post #74
juancn wrote: post #66

I don't get the legal contradiction. The search is supposed to be lawful without a warrant because you're not really in the US yet per-se, hence if you're not there, how deleting the data can be a felony?

That is a most interesting and underrated point.

It's a fairly shallow point that ignores how laws work.

The premise that the law doesn't apply because you're not in the country is false. The constitution applies generally everywhere to all Americans, it's just that what's regarded as reasonable differs during a border search. IANAL, so just my lay opinion on this. Just to validate this, it's only because the constitution exists that the border authorities have any legal basis in doing inspections.

Re: Felony charges for citizen deleting phone data at US Border

#93

Post by spacebanana7 »

dredmorbius wrote: post #87
spacebanana7 wrote: post #22

Earlier quoted context omitted.

I wonder whether it'd be better for a duress PIN to delete existing data and also create a semi plausible artificial profile to hide the deletion event.

This discussion was raised last time this story was discussed. I was among its advocates: https://news.ycombinator.com/item?id=49061890 >. Briefly: no. Less briefly: https://news.ycombinator.com/item?id=49060780 > and https://news.ycombinator.com/item?id=49060716 > (from the grapheneos HN account directly).

Thanks for sharing - I get the concerns people have raised in those threads, however I still feel something in this space could be useful.

Even a duress PIN which triggers predefined deletion of certain folders, messages and apps could reduce law enforcement exposure significantly.

Re: Felony charges for citizen deleting phone data at US Border

#94

Post by phoghed »

dredmorbius wrote: post #88
phoghed wrote: post #43

Seems like it would be better to have a truecrypt type of situation, where if you put in a certain pin, then it just logs you into a separate OS with nothing you want to hide. Obviously have the duress pin if what’s in your phone is worse than the obstruction charges too.

https://news.ycombinator.com/item?id=49389273 >

In the truecrypt scenario you’d be using the hidden and encrypted volume only for what you explicitly want to keep hidden and use the other one for your daily life.

So in the article situation, the guy is a protestor and presumably suspects he’s going to be targeted by the police for it. He’d keep that stuff isolated from his usual activity. There’d be no need to generate convincing fake activity.

Certainly more of a hassle than having a PIN that can destroy everything.

Re: Felony charges for citizen deleting phone data at US Border

#95

Post by insane_dreamer »

juancn wrote: post #66

I don't get the legal contradiction. The search is supposed to be lawful without a warrant because you're not really in the US yet per-se, hence if you're not there, how deleting the data can be a felony?

right, there's a contradiction here:

- if you're deemed to be on US soil, constitutional protections (4A) apply; can't be destroying "evidence" unless you're accused of a crime or found to have committed a crime

- if you're deemed _not_ yet on US soil, then how can you be charged with a crime under _US_ law?

Re: Felony charges for citizen deleting phone data at US Border

#96

Post by tavavex »

juancn wrote: post #66

I don't get the legal contradiction. The search is supposed to be lawful without a warrant because you're not really in the US yet per-se, hence if you're not there, how deleting the data can be a felony?

I think you legally are in the US while at an American border crossing - at least if the crossing is on US land, which it was in this case. It might be more complicated for preclearance spots. It's just that normal rights are suspended there despite being in the US, even for citizens. Make of that what you will.

Re: Felony charges for citizen deleting phone data at US Border

#97

Post by tavavex »

I'm not a legal expert, but all this seems to check out with US law. Americans need to remember that some of their constitutional rights don't really apply at ports of entry by design. This inconvenient truth for the land of the free has existed for a long time, this situation is just drawing attention to it. Their powers are far-reaching.

Re: Felony charges for citizen deleting phone data at US Border

#98

Post by joshka »

34679 wrote: post #21

Amendment 4: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Amendment 5: "..nor shall be compelled in any criminal case to be a witn…

I'm just guessing here, but the most problematic word on the 4th amendment to attack from the government's perspective is "unreasonable". It's easy to see how a phone border search could be construed as reasonable, and (without digging into this deeply) I suspect that's where most of the push back on this will be.

I suspect the 5th amendment is probably more valuable to the defense here as the password is effectively testimonial and the give us your password or we'll ... is compelled speech.

Either way, it's gonna be many 10s of thousands of dollars in lawyers fees to fight this. Which sucks.

Re: Felony charges for citizen deleting phone data at US Border

#99

Post by joshka »

So the part of this that feels like it triggers the government issue here is that in effect you have a locally stored encryption key which gates access to the device, which was removed from the device due to duress password.

What if we flipped this to instead be something that's explicitly not on the device?

The border search stuff only applies to information on the device. It cannot compel you to provide access to e.g. emails stored in a cloud provider.

If instead of making the process of stopping searches like this be a destructive one, we instead pre-purge the key but store it offsite with the ability to get it from an online location, then this feels like it's probably reasonable here. In the sense that the 4th amendment explicitly allows "The right of the people to be secure in their persons, houses, papers, and effects, ..."

There's probably some sort of technical problem I'm missing here (or maybe this functionality is available already).

Re: Felony charges for citizen deleting phone data at US Border

#100

Post by HDThoreaun »

OutOfHere wrote: post #74
juancn wrote: post #66

I don't get the legal contradiction. The search is supposed to be lawful without a warrant because you're not really in the US yet per-se, hence if you're not there, how deleting the data can be a felony?

That is a most interesting and underrated point.

It doesn’t matter where he was when he deleted the data. He could be in China, it’s still a crime in the us to destroy evidence wanted by American authorities.
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