Fair point. I should have clarified that I am speaking from the experience of having devices (phone, laptops, computers) confiscated by police in Australia. It will definitely vary between state/country, but unless you are certain of your rights when and where you’re being arrested/having your devices taken into custody, wiping your devices out of caution is very understandable.
I know airports are also a very serious risk for refusing to hand over passcodes, and depending on the country you’re in they can deny your entry if you refuse to give them access to your phone data.
By the way, that guy had the option of simply disabling the phone, after setting a strong password. But if he chose the delete option, he most likely planned to do so. I suspect he’s a real criminal.
For all the not-lawyers here and not-lawyerly advice, this is the most real.
No evidence of a crime had to exist. Wiping a device that CBP wanted to see is the crime. There doesn’t need to be evidence of anything. He could have wiped a newly set up device with literally nothing on it and had the same result. Regardless of how they come out of this, likely banned from entering the US for a long time at best, they also have to incur legal expenses, lost wages from missing work, etc.
If they were smart, they would have used the GOS duress pin and then gone berserk about all the personal photos of their kids that were lost and why did CBP ruin their phone and started to lawyer up first as of CBP did something to break their phone. At that point getting kicked out with a bricked device is a mild loss for everyone, but not worse off for the subject of the article.
FYI this article reports the person was arrested for destruction of evidence, it doesn’t mention any other charges.
Sounds like you say this with a practical perspective, am I correct?
Legally speaking, I don’t know the details of what amounts to “destruction of evidence” at the US border, but I would suspect whatever is destroyed must have been evidence of a crime in order for a criminal charge to result in conviction.
Practically speaking, like you say, CBP will arrest anyone who does a factory reset, data wipe, duress activation or device breakage before their device is stolen.
Maybe this was the problem the arrested person faced.
You can prove (to yourself or to others) you didn’t forget the password by using it to unlock your device. This means, if a border agent catches you unlocking your device, they will have evidence you didn’t forget your password.
Conversely, there is no way to prove you did forget a password. Depending on where you are, the border may just assume you know the password and are refusing to comply.
At the United States border, where the arrest took place, there is the 5th Amendment of the US Constitution which legally protects people from self incrimination. The government cannot lawfully compel people to disclose their passwords. However, they may pressure non-citizens into disclosing their passwords under threat of, for example, being denied entry.
I agree it should be, but there is no national precedent either way yet. Courts in different jurisdictions have ruled differently so it will depend where you are in the US until someone takes a case to the Supreme Court.
I guess - this seems fairly straightforward through:
At 12:34:56 a law enforcement officer with a right to search a device asks to see the device in its current state.
12:35:05 The device is wiped and state is changed.
12:35:35 The device is handed to the LEO with no data remaining from the point in time in which the LEO asked to see the phone. The LEO realizes this and sees an attempt to evade the legal request to see the phone in its state at 12:34:56.
It has nothing to do with the 5th Amendment, either. That’s a right to not be compelled to implicate yourself in crimes during the process of unrelated but official whatever. If you’re in court because you witnessed a hit and run accident, and the prosecutor asks about your expired license you had while driving past the hit and run accident, you can plead the 5th instead of talking about you were driving all over town with an expired license under oath and admitting to a crime.
Even with the timeline you laid out, it’s unclear to me. Legally speaking, unless I’m wrong about what “destruction of evidence” means, and unless CBP has evidence that evidence of a crime was on the device, I don’t think they can make a successful destruction of evidence case. In other words, if CBP lacked knowledge of what data was stored on the device, it would have been wrong for them to arrest the person for destruction of evidence.
I’m hoping the upcoming TWIP #31 will discuss the legal aspects of this case.
For clarification, my paragraph about the 5th Amendment was in response to someone’s question about disclosing passwords, not wiping data off devices. Further, I’m unsure how effective the 5th Amendment is at protecting against forced disclosure in practice. After my post, this was mentioned.
The most important thing to remember is that this does not matter in the slightest when it comes to being arrested. You can just be arrested for any reason, which sucks.
I mean I’m not a lawyer but I would argue they have a right to search the phone, not search the phone in any particular state. Unless they believe there is evidence of a crime it’s not destruction of evidence to wipe it first. In fact, their right to search the phone at the border without a warrant is inherently tied to the fact that there is no presumption of any wrongdoing, because it is a special exemption to the fourth amendment which allows them to do it at the border. If they had reasonable suspicion there was evidence of a crime, they wouldn’t need an exception to the fourth amendment, because they would have probably cause already.
I think they have the right to search the phone in the state it will be in when it crosses the border, which if wiped, it was in, they can’t unwipe it after its been searched before crossing.
However, it’s kind of like flipping off a cop, in that even if it’s your right, your really just poking a bear. Just have a strong passphrase, shutdown the phone, and argue your right to not disclose it, as the theory I laid out in this post is certainly much more shaky than that, even considering the potential issues with it I mentioned earlier in the thread.
IMO the best thing to do as a US citizen really is bring a travel phone out of the country. Not even just for this purpose, it’s so easy to even just lose your phone while traveling, do you want to risk anything happening to your primary device?
I am also not a lawyer, but I do work in policy. I agree that if one were to want to make a stand, shutting down the phone and riding out the situation to the point of getting a lawyer is the most “above board,” I guess we could say, way to do that. But you pretty much assure yourself of never getting that phone back.
Though, CBP searches aren’t necessarily covered under the 4th Amendment, AFAIK. The Probable Cause is “you are entering the country” and CBP has the jurisdiction to do whatever they feel like within some relatively nebulous “protecting the homeland” statues. And that was before NSPM-7 criteria. Under NSPM-7, literally everything that isn’t being Stephen Miller can potentially be viewed as a crime, so short of a legal case going to SCOTUS, the 4th Amendment does not apply at the border and barely applies within our borders anymore.
I’m not a speedrunner, but here’s my pro speedrunning tip: Take this whole thread with less than a grain of salt. In fact, take no salt at all. Go flavorless.
My non-lawyer understanding is they don’t have probably cause just because you’re crossing the border, it’s that they don’t need probable cause when you’re crossing the border.
I 100% agree with what you’re saying, but technically you add the salt when you otherwise wouldn’t if there’s reason to be skeptical. No salt would imply not being skeptical, if you want to be more skeptical you would take more than a grain of salt. Yes, I am extremely fun at parties.
Oh I see. Well in that case, I suppose we instead should take it with enough salt to salt the sea! :- P
In all seriousness tho, I hope I didn’t offend anyone who was trying to contribute their knowledge, or discourage discussion. If someone were to recommend Tor even though they weren’t a cybersecurity expert, I wouldnt bat an eye. But in this case, law is confusing and we aren’t a law forum lol, so it’s just another factor to consider overdosing on the salt, so to speak.
