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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

#771

Post by avereveard »

_heimdall wrote: post #228
Zak wrote: post #214

Earlier quoted context omitted.

This is a half-truth. In a full banana republic, technical compliance with the law will not prevent consequences for failing to do what the authorities want. In a jurisdiction with perfect rule of law, it always will. The USA is somewhere in between. One of the laws that's enforced pretty well in the USA is the protection against unreasonable search. Most of the time, a search requires showing a judge evidence that t…

Unreasonable search is always under attack though. There are many instances today of cops forcibly entering a home claiming nothing more than a welfare check, or "we received a call." Edit to add that its also more difficult than it should be to protect and exercise the right against unreasonable search. If a cop knocks on your door its a consent-based interaction. You can simply not respond, but if you do happen to…

Border control is border control, this is not a stop and frisk scenario.

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

#772

Post by spl757 »

rootusrootus wrote: post #467
spl757 wrote: post #389

Earlier quoted context omitted.

The US has it's mid-term elections this november, and it's possible, and even likely, that the Democratic candidates will win overwhealmingly. The Democrats are not a monolith, either, the Democratic Socialists of America political group is the very progressive part of the Democratic party, they are the ones that are not accepting dark money campaign donations. I do not agree with a lot of the unrealistic things that…

I think the best case scenario is that the democrats win sufficient control of congress that they can both stop the legislative agenda (to the extent it even exists) and interfere enough with presidential executive actions that everything stalls until we reach the next presidential election. I have exactly zero expectations of real consequences to Trump. He has far too much popular support for that to be realistic. B…

Trump knows a lot of dirt on a lot of very powerful people, and he likely has dementia. One thing about dementia is that it can cause people to say things they normally would not say. That's a huge risk to those that are afraid he's going to start blurting out these secrets. That makes him a liability to the kind of people that can make anyone worth more dead than alive.

This is obviously pure speculation on my part, but I think it's quite plausible.

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

#774

Post by TheOtherHobbes »

jmyeet wrote: post #551
grapheneos wrote: post #322

Earlier quoted context omitted.

A court has not yet determined whether the use of the duress PIN/password was legal. There's definitely no consensus among legal experts of it being illegal as you're portraying it. The US has strong legal protections against self-incrimination and unreasonable searches despite erosion of how much people's rights are respected. A factory reset done in anticipation of a search is not as different from using a duress f…

I used a very specific word for a very specific reason. That word was "spoliation". It is a legal word. It means destroying evidence but it means more than that. If you're the subject of a lawful search and you destroy evidence rather than handing it over, that's spoliation. It has legal consequences. Courts are allowed to assume that whatever was destroyed was detrimental to you or your case. You can be charged with…

Spoliation requires a situation where a legal case is reasonably foreseeable. It's reasonable to ask exactly what that foreseeable legal case would be in this situation.

"We will jail if you don't comply" is questionable grounds. There has to be explicit suspicion of something specific. Otherwise it's a fishing expedition, and questionably lawful.

Do the TSA and CBP get more latitude? Yes, but only up to a point. And that point is constantly being challenged.

It is not the same as resisting a lawful search. That's more likely to be obstruction.

It also not the same as deleting evidence when you're on notice that a case against you is incoming. That is legally much more straightforward.

Of course the reality is this government DGAF about freedom or constitutional rights. It has already shot people in the streets in cold blood for no good reason.

So this is a risky move.

But... there's been significant judicial pushback against overreach.

Ultimately it's a constitutional issue, but different states have different policies and attitudes to that.

https://www.hornwright.com/civil-rights-law/illegal-search-s...

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

#775

Post by jarym »

otterley wrote: post #698
seanhunter wrote: post #678

Earlier quoted context omitted.

If you want actual legal advice pay for an actual lawyer. You aren’t going to get it asking a bunch of randoms on a tech forum. Since we’re techies we tend to think about technological nuances and have a certain literal frame of mind (eg “They can’t make it illegal for me to just type the wrong pin” is the type of thinking I’m talking about here) whereas in law weird precedents and your intent really matter so you re…

I am a lawyer (this is not legal advice) and agree with the main thrust of this comment. The law is not “hackable.” Ultimately people are making decisions about guilt and punishment. And judges really, really don’t take kindly to defendants who think they’re trying to outsmart the court.

Is the government not hacking the law with its weird interpretations and assertions?

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

#776

Post by flanked-evergl »

raluk wrote: post #726

From Universal Declaration of Human Rights (UDHR) accepted by the United Nations General Assembly on 10 December 1948 -------- Article 12 No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. https://www.un.org/en/about-us/universal-de…

What relevance does that have here, though? Most countries that are actually signatories don't even adhere to it. The UN is totally feckless and hypocritical, and even if they were not, they are antidemocratic.

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

#778

Post by expedition32 »

shimman wrote: post #624
az226 wrote: post #540

Earlier quoted context omitted.

Probably, but it will be more valuable for society for him to be tried and found not guilty, setting a legal precedent.

That's not going to stop authoritarians from harassing. Want an example of how this played out? United States v. Wong Kim Ark (1898) was the SCOTUS case that declared if you were born in the US you were a citizen. You think Mr. Ark was okay from harassment after this case was ruled in his favor? Less than 3 years later he would be held in Texas while local authorities tried to deport him under the Chinese Exclusion A…

Yes I totally agree with all this. The government can and will harass whomever they want.

For a hundred years whenever an uppity black man or Northern activist crossed the Mason-Dixie line a KKK sherrif was waiting for them.

You don't actually have to jail people- you just have to make their life miserable. At that point your adversary will either shut up or emigrate. Anyone who speaks out against Trump or the GOP is going to be targeted.

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

#779

Post by spl757 »

usern20260720 wrote: post #728
raluk wrote: post #726

From Universal Declaration of Human Rights (UDHR) accepted by the United Nations General Assembly on 10 December 1948 -------- Article 12 No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. https://www.un.org/en/about-us/universal-de…

The US is not a country governed by the rule of the law

The US is currently governed by a dictator propped up by an oligarchy that can only do that because of the Citizens United supreme court decision. Until Citizens United is mitigated, and that appears to be starting to happen as states make laws that state you can't be on the ballot in their state if you take large, anonymous campaign donations from people who will want, and get, a return on their investment. Hawaii is either considering, or has passed just such a law. We don't even need a plurality of states to make similar laws, just the right ones. Look at a chart of campaign spending prior to, and following the Citizens United decision. Spoiler alert, it looks like a hockey stick standing upright.

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

#780

Post by unyttigfjelltol »

b112 wrote: post #740
hamburglar wrote: post #727

Earlier quoted context omitted.

The interesting thing is that the "don't carry the data" scenario of wiping your phone and restoring it after you're across the border is not functionally different from the "just don't carry the keys across the border" scenario. I would be comfortable with a dd archive of my encrypted phone contents in an short-lived S3 bucket that I could restore with a simple passphrase-derived key, for example. It's hard for the…

It's immensely different. Leaps and bounds different. Why? Well, once you have been told to unlock the device, you're already in a legally binding process. The phone is at this point evidence. It was not evidence before. It was not evidence a month ago. It really is just that simple. Now, they could view prior wipe as suspicious, but as a US citizen they cannot prevent entry. And they may be able to seize your phone(…

> It's immensely different. Leaps and bounds different. Why? [O]nce you have been told to unlock the device, you're already in a legally binding process.

From a factual point of view, rather than the narrow legal one offered, it is not materially different to delete a phone in anticipation of a future search. In most cases, outside the customs context, it's just harder for the government to prove obstruction of justice.

What's different here is that the government only had a right to search the phone in relation to the border, and the government used that right not just to search for contraband like the law anticipates. If someone dumped their contraband and made it disappear before actually crossing a border, would that be an evidence-related crime? What if they thought about a contraband conspiracy, and then intentionally forgot? What if the customs office presented a form to all travelers, well in advance of formal screening, that they must preserve their contraband henceforth? And then they decided not to smuggle it? Interesting questions legally, but factually, considering criminal charges in those scenarios over the evidentiary situation would be pretty silly.

So then, when you delete purportedly contraband data at the border, have you really just done a public service of removing one more potentially contraband item from border inspection? Or is it that once any of us create data in the vicinity of a border or in a context where we might approach a border in the future with the access device or storage medium, do we all have a duty to preserve it for inspection until the customs authorities get around to inspecting us? Or is it just that this series of hypotheticals illustrate that we have here an epic mash-up of misinterpretation here?

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