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Comment by Guvante | Hacker News Reader

How are they going to prove there was evidence of a crime? While destruction of potential evidence does introduce a certain amount of leeway that doesn't allow going from absolutely nothing to "evidence was on the wiped device".

Most previous court cases involving encrypted devices have required substantial proof that the encrypted device contained incriminating evidence. To be clear "you sent this illegal thing from your house" levels of evidence.

It mostly seems inept, if you are going to push to expand your powers you do it on strong cases where you know what happened. Doing it on weak cases like this gives a judge an opportunity to shut down that without giving you a chance of a meaningful conviction and without that you won't get any benefits...

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>How are they going to prove there was evidence of a crime?

They don't have to, only that you destroyed evidence. That's why many people get prosecuted with "obstruction of justice" rather than the actual crime.

>While destruction of potential evidence does introduce a certain amount of leeway that doesn't allow going from absolutely nothing to "evidence was on the wiped device".

So if someone was doing insider trading, and the SEC came knocking, then immediately afterwards they start burning every document they have and microwaving their computers, do you think they should get off the hook? Surely you must think, even if the authorities or society can't a priori know you were guilty, the subsequent activity should be illegal? Note this isn't the same as banning burning documents or microwaving computers, only doing so after you're aware there's an ongoing investigation.

They need to prove you destroyed evidence, you have the mens rea component with the deceptive pin code but the defense can simply plainly say they didn't want the police to read their private device.

Your example is fabricated since the justice department didn't even bring forward a specific crime they believe was committed here.

If they charged him with a crime and had evidence his device had evidence of that crime (even if in reality it didn't) that would be a more interesting question.

But again where is the crime?

> But again where is the crime?

Destruction or removal of property to prevent seizure.

CBP are empowered to search US citizens devices and, if the citizen refuses to comply, to seize that device. They'll be alleging that by knowingly providing CBP with a duress PIN he destroyed his own property to prevent its seizure.

Notably, they don't need to prove he destroyed evidence of anything.

Property was not destroyed or removed and can still be seized. Slam dunk for the defendant

Digital property is property.

Is that what the law says? Does it say that digital copies of photos are property? Does it say browsing history is property?

https://en.wikipedia.org/wiki/Intellectual_property

Not to mention it fails a basic sniff test. You seriously think a judge is going to rule "well even though you deleted all your emails, since those are technically bits stored on a phone, and the phone is still there, you haven't destroyed anything, and you're free to go?"

Except that doesn't matter here, IP isn't why you can't destroy emails.

You can't destroy emails because they law says those are evidence.

>with the deceptive pin code but the defense can simply plainly say they didn't want the police to read their private device.

That's as convincing as saying you burned all the documents because you don't want people who break in to read all your financial records. It just happened to start after the SEC came knocking

Except this isn't the SEC actually pursuing a voicable crime. This person was under no suspicion at all. They were simply coming home after being abroad: last I checked that is not a crime. Outside of a crime, "evidence" is just called property. If the TSA can't show "we have provable evidence gathered elsewhere to show that there was possible incriminating data on that phone" all they did was wipe this guys phone. All they had was pre-crime "he was involved in the movement against Cop City so we're gonna search his phone". No "he was meeting with terrorists in the DR". No "we have good reason to believe that when he was in the DR he communicated with terrorists". Just "uhhh we were looking for anything prohibited[1] and we targeted this guy because he was involved in some anti-cop protest group 3 years ago".

If you can't see how insanely thin their argument is, and how easily this will be abused, I don't know what to tell you. We could just as easily say having any passcode on your phone at all is obstruction of justice, since the feds could want to look on your phone for whatever made up reason, and if they can't because its encrypted, well why did you do that? What are you trying to hide? Evidence of a crime!?!?!

1. I had to call out, "looking for anything prohibited" is a direct fucking quote from CBP. They admitted it was a fishing expedition.

>We could just as easily say having any passcode on your phone at all is obstruction of justice, since the feds could want to look on your phone for whatever made up reason, and if they can't because its encrypted, well why did you do that? What are you trying to hide? Evidence of a crime!?!?!

I specifically said this wouldn't be covered, because you set up the pin before you knew any investigation occurred. However, I think it's reasonable if you were pulled aside by CBP while deplaning, and while you're waiting to interview you decided to hastily turn on encryption on your laptop, or eat a bunch of papers you had on you, I'd say that's similar to evidence tampering, not unlike flushing drugs down the toilet when you see a cop pulling up on your driveway.

Drugs are actually illegal. Thats the difference. If what you’re getting rid of is not illegal or evidence of illegal activity, there is no crime. It sure looks suspicious but the point is that if there was no actual evidence, then this is getting rid of regular property.

You cant have evidence tampering when there is no evidence, because there is no crime for there to be evidence of.

> I specifically said this wouldn't be covered, because you set up the pin before you knew any investigation occurred.

But that’s just the thing: no investigation did occur. Being pulled aside by CBP doesn’t amount to an investigation. There can’t be an investigation without suspicion of a crime.

What if you knew you were on a terrorist watchlist, so you put a PIN on your phone?

It is evidence. Something can be evidence even if the evidence does not prove any crime.

Destroyed evidence of what?

Destroyed materials that might be relevant to an investigation that you know exists.

Hmmmm sounds like the government can launch endless bs investigations, wait for their target to throw something (anything, a piece of paper, whatever) in the trash then charge them with destruction of evidence. A infinite guilty-change glitch if you will.

That's what judges are for, so cute hacks like "putting everyone in the US under "investigation" won't work. That said, if I was under investigation, you bet your ass I'd be extra diligent in ensuring I'm not accidentally shredding any documents.

What you're describing is malicious prosecution or abuse of process. It's illegal and it would destroy the prosecution's case. Not only that, but the victim could sue for damages.

Sort of like deliberately targeting somebody for his alleged association with the movement against Cop City?

Yes, much like that. If he hadn't destroyed evidence, he could have argued it was malicious prosecution.

To quote the article: suspected terrorism activities because of his alleged association with the movement against Cop City

Complete horseshit on many levels, but presumably a legally valid investigation.

Seems like they could have had a warrant in that case.

> So if someone was doing insider trading, and the SEC came knocking, then immediately afterwards they start burning every document they have and microwaving their computers, do you think they should get off the hook?

Apples and oranges. They presumably already have some sort of evidence in order to get a warrant and are under criminal investigation.

According to the article the agents said it was just a normal part of screening.

>They presumably already have some sort of evidence in order to get a warrant and are under criminal investigation.

What if there was no warrant, and the SEC just came to ask questions?

If they came to ask questions, then they presumably already think I've committed a crime. This is not the same as randomly stopping someone and asking to see their phone.

A trucker passes a weigh station and is signaled to pull in. As he's pulling in, he's seen dumping the contents of a bottle onto the ground. Is this destruction of evidence or obstruction of justice? He's not under any investigation (trucks are regularly weighed at weigh stations as a matter of normal procedure).

A company is engaged in some white collar crime. They're tipped off that the DoJ launched an investigation on them. No warrants/subpoenas have been issued, and no investigators have shown up. The company instructs the IT team to scrub their email servers. Is this destruction of evidence or obstruction of justice?

> Is this destruction of evidence or obstruction of justice?

The investigators can (and have) threatened both as a tactic, but when the charges are files, the specifics are what the prosecution thinks they can get a conviction on. I think it's understood that the law is interpreted, which has given great leeway to narrative.

> he's seen dumping the contents of a bottle onto the ground

Is he dumping cocaine? Yes. Is he dumping stuffed animals? No, unless it's for littering.

You have to prove it is an evidence of a crime to start with, speculation is not a fact. My property, my business, i can smash the phone and no one has anything to do or say unless there’s an undeniable fact that there’s an evidence there and it got destroyed, else, it’s no one’s business.

>Note this isn't the same as banning burning documents or microwaving computers, only doing so after you're aware there's an ongoing investigation.

Well, good luck to them. If I'm on the jury and he argues "I got my passcodes confused" that's reasonable doubt for me.

I'm not a lawyer, but my work domain revolves around data analysis of certain types of crime. Often times the suspects are flagged and under surveillance, so if and when they cross borders or go through check-points where you have a great deal of authority, they'll get searched.

In many countries certain agencies / agents can do searches which normal law enforcement officers can't. Like not needing a search warrant or even probable cause. Not to mention that wiping a device could in itself be a crime, if it is suspected that evidence is being destroyed.

The key point here is that, as I wrote, some agencies have a lot of authority, and have the power to do pretty drastic stuff.

The career prosecutors at the DoJ are not the same as a couple years ago. I hope this case ends the same way as the sub sandwich assault.

They are not sending their finest to court it seems.

If your legal system depends on the benevolence of prosecutors, you've already lost before it began.

Attorneys are supposed to be adversarial. The system's soundness shouldn't depend on anything more than them trying to win and not doing anything illegal.

Before "prosecutor" became an elected/appointed office, prosecutors were independent contractors, hired for a single case only and serving at the pleasure of the Grand Jury. The Grand Jury's job was to decide how to spend the public prosecution budget. "Indictment" meant exactly that "prosecuting this person is a good use of tax dollars" and nothing more. We should go back to that.

Any system ultimately depends on the benevolence (or at least the decency) of the people in it. The idea that a society can design a perfect system and it will run itself is very dangerous.

The comment you're replying to was focused on prosecutorial incompetence, not benevolence.

Whether to prosecute or not is not an objective question of competence.

A trained chimp could have gotten prosecuted the sandwich.

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