Something like that should be a standard feature of a secure phone.
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 really need expert advice and either way, you are throwing yourself at the mercy of a stochastic process that depends on a bunch of fallible humans along the way many of whom have the power to make your life extremely miserable.
Technicalities of destroying the data vs destroying the key to the data, destroying the data when you have a backup etc may matter a lot to us but may not mean anything in an actual judicial process depending on how it goes.
It seems to me if you have data you don’t want subject to seizure at a border it is best not to travel over the border carrying that data. If you have a backup (in your scenario), why not restore your phone from that backup after you have travelled, and not cross the border with anything that is likely to be a problem if seized? Then you’re not putting yourself at risk from this process.
see the colored bits essay for an ur-example of this
Say you carry a valise with a lock. They ask for the key, you truthfully answer that you do not have with you. They burn the valise and lose all the contents.
So, are you in jail? or can you sue them for destroying your stuff?
In real life they would break the lock on your valise and return it to you bound together with tape.
- did you intend for the data to be destroyed in an eventual search?
- probably yes, because you went to the trouble to set up a duress password
- is it reasonably that you mixed up the two passwords? No, because only an idiot would make them similar and you're clearly no idiot, because you were able to set up a phone with a duress password.
- hence, you intentionally made the officer wipe your data, and you will be held liable.
It doesn't make any difference if the destroyed potential evidence is physical or digital.
The law as written is stupid, but that does not mean courts are stupid.
It is rather funny to look at how some programmers believe they can "trick" the law. It does not work like computer code!
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.
It absolutely is. The rich and powerful do it all the time.
Although bribery is a felony in itself
> it’s the system working as intended.
Maybe it is
The problem is that the Constitution is broken, and has been since it was drafted. The right to bear arms probably should be conditioned on something more clear than the necessity of a well regulated militia (whatever the hell that means) to the security of a free state. The requirements for warrants probably ought to be weakened somewhat at border crossings. But the plain text of the Constitution does not allow this. The plain text contains no exceptions, and does not empower Congress to make exceptions. But changing the Constitution is hard, so rather than go through this slow, arduous process, everyone just punts the problem to the Court and says, "You deal with it." And so they do. The Court just does end-runs around the Constitution for defensible and practical reasons. But this doesn't change the fact that it is doing end-runs around the Constitution.
The point the sibling comments miss is that for the hoi polloi, this one-weird-trick does not work because such laws has been written to broaden the scope as much as possible by heavily relying on intent instead of the micro mechanics (which keep changing) AND the enforcers focus on the intent. For the rich and wealthy, the law may be the same but the enforcement is wildly different because they absolutely have the enforcers on their side. I bet such people don't get strip searched like the unwashed masses as they roll off their private jets.
But there are often vaguer higher level principles that can stop the fun, involving concept like "reasonable person" and "good faith" which are interpreted by humans. But this also doesn't happen always. Sometimes people do get away on technicalities, though many may suspect corruption in those cases, but sometimes the law is indeed powerless against certain novel tricks. There is no general answer.
People here thinks in technicalities and what if, and while technicalities apply in legal cases, they're not like a lot of people here think they work (quite the contrary!)
This is not "well if the gov had a quantum computer they could decode" this is not how the legal world decided things.
One thing this case makes me wonder is if the government would have a problem with someone walking across the border with a completely virgin phone. They must have wiped it, right? Would they try to prosecute? How could they possibly know the defendant in this case actually had anything on his phone before the duress code was entered?
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(suspicious!). Which is why simply stating the truth politely "I believe in privacy, and loath government poking into the private affairs of citizens" might help down the road if you want to sue. Might.
Border guards protect the realm, after all, and have wide latitude.
From my side, my truthful argument for wipe has always been that all of my buisness clients, emails, data might be on my phone. I have a duty to protect their privacy.
Making reasonable statements takes the edge off of 'suspicious', and the more people who wipe? The less suspicious it becomes.
The biggest thibg anyone could do, is make 100% restorable backups for non-rooted Android a thing. It's doable, but a PITA right now. Make it one-click, perfect, reliable, and more will do it.
And then it isn't unusual, it's normal, and the suspicious elements vanishes.
Of course, as Google is mired in asshattery lately, I'd expect any attempts to protect us all, such as ASOP patches or bug reports, would be fought against and ignored. Helping the world, protecting travellers, political dissidents, not on their radar.
They even fight such things.
Because in this day and age, Google does not have your back. Instead, they shove knives there.
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?
I mean really, this act is exceptionally blunt, clear, and overt. All this hand waving won't change things.
In none of my scenarios am I describing actions to be taken after you have been told to unlock the phone. I’m talking about before you ever approach the border. There is no functional difference between wiping a key which encrypts the entire device (but leaving the encrypted data in place) vs wiping the entire device, from a security point of view, except one requires twiddling fewer bits to restore the data.
My point is that the law is unable to see that equivalence, but it is also unable to compel a different result. If choice A and B are identical for security purposes but the government can technically prosecute A but not B, all they have accomplished is forcing people to choose B.
It's exceptionally apparent you've caused destructive behaviour, after the phone is in evidence.
None of the other scenarios, show your duress pin factory resetting the device, then dropping into a setup screen, after the border agent confiscated it. So much of tbe law is intent, coupled with knowledge of your situation.
There's nothing new here really. Throw a diary into the fireplace at home? Fine! Travel with a blank diary? Fine!
Grqb it from a border guard and and rip it up? Trouble.
It's not about the state of the device at the border. It's intent to change the state after confiscation.
In all your scenarios, you would not be charged with this crime. They may seize the device, but not charge you.
I believe the duress password reboots the phone. They likely know this, hence the different outcome.
Convictions at trial are much lower.
There are ~4x as many cases dismissed by judges before getting to trial. And the vast majority (90%) of defendants enter into plea bargains.
Prosecutors only bring charges when they feel they have a strong case. There are many many cases which are never pursued because of this, and people also get upset about that.
Many countries do not have a plea bargain system the way the US does. And if you look at conviction rates at trial, they are smack in line with much of e.g. Western Europe.
At some point the high conviction rate acts as a deterrent from not entering a plea. IMHO this is the case in the US and has been for quite some time.
What does lead to pleas is the expense of defending a case: if you acknowledge some guilt, you might decide to accept a lesser charge rather than exhaust your finances with no guarantee that you won’t get that lesser charge anyway.
This isn't the case, but if that rule also applied to airports, then I wonder what portion of the population is safe.
1. Intent matters. If you give the password to a Customs and Border Protection agent which deletes all the data, your intent was to deceive them and either delete evidence, or at least fail to comply with their request. CBP has wide powers of search.
2. CBP has broad remit to deny entry to any non-citizen for any and no reason. Even if not illegal to provide a duress password, they can and will send non-citizens back home.