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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

#961

Post by metabagel »

metabagel wrote: post #957
hansvm wrote: post #897

Earlier quoted context omitted.

Destroying evidence is legal all day long, even with the law waiting out front, unless some other precondition is attached to that evidence destroying. One thing that makes it illegal is (over-simplifying) destroying it when you knew you had a duty to retain it. To the legal search example, suppose the police frequently stop by your house to discuss neighborhood gremlins. If they happened to accidentally see the boxe…

> Destroying evidence is legal all day long Absolutely not the case. (edited to use a better reference) https://www.law.cornell.edu/uscode/text/18/1519 > Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the ju…

And...

https://www.subjecttoinquiry.com/2014/04/obstruction-of-cont...

And...

https://www.subjecttoinquiry.com/2014/04/obstruction-of-cont...

-----

The defendant need not know a matter was pending or within federal jurisdiction. Instead, the “knowingly” element refers only to the obstructive conduct. United States v. Moyer, 674 F.3d 192, 208 (3rd Cir. 2012). The federal nature of the statute’s prohibition is a jurisdictional requirement, but not a substantive element under Section 1519. United States v. McRae, 702 F.3d 806, 834 (5th Cir. 2012).

No nexus requirement. Given that an investigation or matter within federal jurisdiction need not be initiated or even pending at the time of the obstructive conduct, the government need not prove any connection between the alleged obstructive conduct and the federal matter. Moyer, at 209; United States v. Gray, 692 F.3d 514, 519-20 (6th Cir. 2012).

Materiality is not an element. As an example, falsification through omission from a log or report can support a conviction, without proof of the materiality of the omission. Powell, at 356; Moyer, at 207-08.

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

#962

Post by metabagel »

metabagel wrote: post #959
nashashmi wrote: post #910

Earlier quoted context omitted.

Once police open an investigation or once there is a lawsuit served, destroying evidence relevant to that lawsuit is illegal. The question here is whether the police were in investigation mode. I believe it is an overreach to claim that everybody at a border was going through an investigation. And it is also a overreach that everyone who is selected for search at the border is under investigation.

> Once police open an investigation or once there is a lawsuit served, destroying evidence relevant to that lawsuit is illegal. An investigation doesn't need to have begun. All that's required is that you intended to destroy evidence in the event of an investigation. https://www.law.cornell.edu/uscode/text/18/1519 > Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry…

And...

https://www.subjecttoinquiry.com/2014/04/obstruction-of-cont...

-----

The defendant need not know a matter was pending or within federal jurisdiction. Instead, the “knowingly” element refers only to the obstructive conduct. United States v. Moyer, 674 F.3d 192, 208 (3rd Cir. 2012). The federal nature of the statute’s prohibition is a jurisdictional requirement, but not a substantive element under Section 1519. United States v. McRae, 702 F.3d 806, 834 (5th Cir. 2012).

No nexus requirement. Given that an investigation or matter within federal jurisdiction need not be initiated or even pending at the time of the obstructive conduct, the government need not prove any connection between the alleged obstructive conduct and the federal matter. Moyer, at 209; United States v. Gray, 692 F.3d 514, 519-20 (6th Cir. 2012).

Materiality is not an element. As an example, falsification through omission from a log or report can support a conviction, without proof of the materiality of the omission. Powell, at 356; Moyer, at 207-08.

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

#963

Post by p0w3n3d »

Zak wrote: post #189

For exactly the border search scenario, I wish smartphones could be imaged and restored as easily as PCs. Imagine booting the phone from a flash drive, making an encrypted image of the phone on said drive, and writing a fresh OS before reaching the border. There's no deception required to protect sensitive data or avoid the seizure of an expensive phone. Consent to unlocking the phone, refuse to unlock the drive. The…

Sadly both Google and Apple allow this only when using the cloud... You even can't configure your own cloud provider for the backup

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

#964

Post by p0w3n3d »

gslepak wrote: post #653
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.

It turns out there already is a legal precedent for this. It's called the 4th Amendment: > 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 seiz…

Maybe that's why they are doing it on the airport which is extraterritorial

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

#965

Post by kube-system »

inigyou wrote: post #852
kube-system wrote: post #427

Earlier quoted context omitted.

> What is the difference between giving them a password which wipes the phone and giving them a password which opens a blank phone? > It's the same thing. They punched in a code, they are presented with a wiped phone. No, the behavior between the two is in fact visibly and obviously different. The regular passcode unlocks the phone. The duress passcode reboots the phone and resets it. I know this because this is lite…

You can say it was a wiped phone to begin with, and that may work in court. They're welcome to have evidence it wasn't true, but whether they actually have that evidence is up in question. But it's irrelevant in this case because the guy confessed.

When you enter the unlock code to a phone that was already reset, it immediately unlocks.

When you enter the duress code, you get an animation while it resets, and then it reboots to a factory reset state.

It is directly observable which code was entered. You can claim that it was something else, but your claim is easily dismissed as bullshit.

This was exactly what was observed and recorded by the officials in this case.

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

#966

Post by bentley »

inigyou wrote: post #848
thiht wrote: post #788

Earlier quoted context omitted.

Until they decide it’s a felony

Actually they have almost done that. People have been harassed, detained or denied entry for coming with no phone or only a blank phone.

Can you provide some examples?

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

#967

Post by raluk »

mrcwinn wrote: post #825
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…

Was this arbitrary?

What would be non-arbitrary case where border patrol would need to check your telephone to be sure about safety it provides?

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

#968

Post by cogman10 »

voxic11 wrote: post #958
cogman10 wrote: post #883

Earlier quoted context omitted.

> It's worth noting wiping a device shortly before an anticipated search could also be considered destruction of evidence in the same way. Look, if we are talking about a warranted search in the US then I'd agree with you. However, the entire point of CPB's unwarranted search authority is to stop contraband from coming in. This would be like arguing that throwing away materials illegal in the US before boarding a pla…

And this is why he isn't being charged with destruction of evidence. He is being charged with destruction of property subject to a civil seizure. The only reason they can charge him with this is that he destroyed it after being notified that it was being seized. If he has deleted it before then there would be nothing they could charge him with.

Right, but I think what makes this interesting is the destruction happened only after violating his civil rights. Had they simply seized the device the data wouldn't have been destroyed. He refused to give them the pass code several times before giving them the wiping code. He asked to leave and see a lawyer multiple times, which they refused to provide him with one. They held him, illegally, until he gave them his phone pass code.

And the whole reason they wanted in his phone (the real reason) was to figure out who he worked with in the stop cop city protest. That's why he was really targeted in the first place.

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

#969

Post by frollogaston »

inigyou wrote: post #895
frollogaston wrote: post #434

Earlier quoted context omitted.

They might have a way to gain access anyway. That was that case where the FBI got the locked iPhone 5C of a San Bernardino shooter suspect. Apple refused to unlock it, so the FBI paid a hacking firm to do it. If there's no known vuln to get into a phone today, I wonder if they'd hold onto it in hopes that one shows up later.

Any phone besides GrapheneOS should be assumed to be hackable immediately and automatically with a device they have in their back office.

That suspect's iPhone 5C had a weak numeric passcode, so the only defense was hardware security limiting the number of attempts. Someone reverse-engineered that, wasn't a backdoor. I'm not sure how GrapheneOS differs from regular Android or iPhone on hardware security, but seems like it's basically the same. Need a secure passphrase to be truly safe.

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

#970

Post by [deleted] »

Razengan wrote: post #743
frollogaston wrote: post #449

Earlier quoted context omitted.

Well, yes. Imagine responding like this guy in Chinese border control, or even UK. The 1A, 4A, 5A mentioned here don't exist.

"wElL yEs, we're not completely fucked yet " - Saying that is how we got here America didn't have an abrupt revolution like in China or Russia, just the collective populace willingly being complacent bitches for the last 26 years

[deleted]
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