Wouldn't they have to prove beyond a reasonable doubt that there was data on the phone that was wiped? Even the article says that only the data on the device at the time of the search is in-scope. Wouldn't you have to prove that there was something in-scope to search for it to be a lawful search?
Felony charges for citizen deleting phone data at US Border
951–960 of 1001 posts
Re: Felony charges for citizen deleting phone data at US Border
#952What I don't understand is if he just didn't give any password, he would have been fine. It's only because he gave him a duress pin that he's in trouble. So, in both cases the government wouldn't have access to the contents of the phone
He was viciously interrogated for three hours before giving the duress cod. And I'm not fixing the typo.
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Re: Felony charges for citizen deleting phone data at US Border
#953Earlier 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 Again, I'm not a lawyer, so don't listen to me, but obstruction of justice is a thing, so I'm not sure how you can say that. > The _intent_ behind your actions, at least in this case, is a core component of the crime. Agreed, but irrelevant to the physical vs. digital question.
> how can I say that
The exact way I did, with an additional clause afterward appropriately scoping the statement and thereby not stating something overly broad :) The point is that destroying evidence, by itself, is not a crime. Additional elements are required.
> irrelevant to some other question
That's true. I just saw something not quite true (your police on the porch example) and thought somebody might find the extra nuance interesting.
Interestingly, digital vs physical _does_ also matter a little in a few ways (e.g., whether it's even evidence in the first place if it's digital). However, as that's worked its way through the court system over the years, it is practically true that in most cases you're right, at least as it pertains to this charge AFAICT; digital evidence has similar properties to physical evidence in the eyes of the courts.
Re: Felony charges for citizen deleting phone data at US Border
#954Earlier quoted context omitted.
I am pretty sure someone discussing taking people to gas chambers in 1933 would also be called having a wild take. It's where the US is heading. Fascism marches on in full swing.
Germans didn't believe there were gas chambers until the 50s or 60s.
Which is all the more reason that discussing it in 1933 would have been viewed incredulously. Your reply only strengthens the original comment.
Re: Felony charges for citizen deleting phone data at US Border
#955Re: Felony charges for citizen deleting phone data at US Border
#956And this is why companies in the EU have a business travel rule to take a freshly wiped laptop on international trips, not just a locked one with a "distress code".
Re: Felony charges for citizen deleting phone data at US Border
#957I read a pretty compelling argument by a lawyer that we're looking at this the wrong way. (I Am Not A Lawyer) Their point was that if the law is knocking on your door to legally search your house, and you have records of your criminal empire printed out in boxes in your attic, or just non-illegal things you don't want people to see, and you burn those papers while the law waits out front, you're guilty of destroying…
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 jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
"... or in contemplation of..."
Re: Felony charges for citizen deleting phone data at US Border
#958Earlier quoted context omitted.
GrapheneOS has built-in encrypted backup and restore. It backs up the same data transferred by Google's device transfer feature for moving to a new phone which is nearly all app data, the data in the home directory, contacts and a bit more. Certain apps such as Signal encrypt their own data with another layer of encryption using a hardware keystore key. Signal's own backup system needs to be used for that, although i…
> 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.
Re: Felony charges for citizen deleting phone data at US Border
#959Earlier 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…
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 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 jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
"... or in contemplation of..."
Re: Felony charges for citizen deleting phone data at US Border
#960Earlier quoted context omitted.
leave electronics at home. never take electronics to any airport unless you don't care if everything is read. your only option now. or have a good enough decoy or encryption system in place. Such as pressing a button to lock or replace key documents but keep the rest intact. So what looks like a sensitive document omits key information but still appears to be legit to observer.
That's probably a bit overkill. TSA doesn't have nearly as much power as CBP, so it's only a concern when coming back across the international border.
Its overkill until it happens