Intent matters. It might be hard to prove, but it matters.
It may not even be that hard; what other possible explanation is there for someone putting a PIN visible on their phone that wipes it while crossing a border?
Two obvious answers:
1. It's for the general case of lost/stolen phone.
2. It's for the owner. I can't remember numbers I don't type in, might as well keep it visible on the device.
theyll have a hard time showing that you intended for the government to break the law. first the government would have to admit breaking the law
For thieves, obviously.
"I told you not to. You're the ones who wiped my phone. You owe me money for destroying my personal property."
I'm not saying you would get a check courtesy of Uncle Sam for your troubles, but the argument that you deceived authorities into destroying evidence is a lot weaker.
I might go with "do not enter 696969" instead because the stranger fiddling with your phone probably expects a your phone to do something funny, like load a shock site.
I suppose it's possible someone might enter it without thinking, but the odds seem low. Also seems risky to put a self-destruct PIN on your device, lest a friend (or enemy) enter it by accident or as a prank.
At some point, we have to accept that the world has irrevocably changed, that people have lived where they live for generations, that resettling them all is impractical, inhumane and just not a good idea in general, and just move on and build the best world for the people currently here.
During WW1 and then again during WW2, the world has agreed to the right of self-determination. If people feel they're a certain nationality separate from what their government imposes on them, then they have a right to become their own country with their own laws and their own border enforcement. If you are literally asking what gives Americans the right to prevent others from coming, this is it.
Lying to a federal officer is a crime, IIRC, and if the lie results in destruction of evidence, the person who told the lie is probably accountable for both crimes. This isn't a lie with plausible deniability: you have to set a duress PIN, understanding what it does, and then communicate that PIN instead of the unlock PIN.
A duress PIN to wipe the device don't exist to absolve the owner of liability... It exists for when compromising the device could get people the owner cares about killed or disappeared and the owner considers their own liability, disappearance, or death a preferable outcome.
It is an extreme solution for extreme scenarios. People need to be sober in weighing its use.
Or it's preferable to get caught lying to a federal officer than it is for them to have the evidence on your phone.
but not necessary evidence, as evidence would imply a crime. But when it comes to police harassing activists, or outright mislabeling them as terrorists, there are many fully legal things you still might prefer the police not to have. Lets not forget that boarder police has in the past tried absurd things like trying to seize Attorney-client privilege protected information from a US attorney.
Through most likely many people setting up and using a duress pins never truly think this thought from a legal POV.
They asked for the pin, maybe they should have said "not the duress pin"
>Destroying evidence
How did they know there was any evidence on there?
>it exists for when compromising the device could get people the owner cares about killed or disappeared and the owner considers their own liability, disappearance, or death a preferable outcome.
No, the duress pin is there for when I'm under duress and being forced to unlock my device against my will
>It is an extreme solution for extreme scenarios
Wiping a device I own is extreme?
This is a Mickey Mouse distinction no court will take seriously.
> Wiping a device I own is extreme?
When the consequences are potential years in prison for lying to the US government or, in another country, torture or death in prison for obstructing an authoritarian government, then yes... Extreme.
All I'm saying is to decide to use a duress PIN at any national border or in any foreign country soberly, with knowledge of the potential or likely consequences.
If you think the system needs fixed or destroyed, you do you, but don't be surprised when that approach gets you in trouble at the border.
People who think that tricking the cops into wiping your device legally absolves you need to grow up. Also those who argue that LE can't prove any evidence was destroyed since it's been destroyed.
Also happens in the US
> They asked for the pin, maybe they should have said "not the duress pin"
The law doesn't work like that. Unless you're provably at the developmental level of a 5 year old, the court knows you know what was required, and also knows what you intended when you gave the duress pin.
The justice system famously never plays "simon says"...
the most authoritarian places in the world wouldn't charge defendants for "lying"
> the most authoritarian places in the world wouldn't charge defendants for "lying"
What on Earth is this second part of your comment supposed to mean?
Do you expect to be able to lie to the government in an authoritarian country? And not be arrested if they catch you in the lie there? And not be charged or worse if they consider the lie serious?
One of which is self indications (even of things that cops didn't know about or couldn't prove) that would allow them to just question anyone into admitting even a parking offense, but I guess you can shut up indeed
I was worried that they could use any crime in a broad area and just force everyone to say with who they were and what they were doing, but you can also shut up
I was also worried than on investigations with no real crime involved, they could just go play jeopardy and ask you what you were doing minute by minute, and get you to talk until something gets inaccurate (while they have cctv but you have no vcr in your brain). But again, you can shut up.
When I'll be in America, I'll remember not to talk to cops.
Not even to 911 as emergency calls are error prone : You said someone was attacked by a suv and knife when it was a pickup truck and machete, you go to jail
In authoritarian countries, that absolutely happens. In America and the West, police are generally expected to have reasonable suspicion of anyone they detain to interrogate, and the length of detention is also limited if no evidence validating suspicion is forthcoming. They could not simply arrest everyone in the proximity of a crime, and geofence warrants are controversial exactly because that was the standard in the analog world.
> I was also worried than on investigations with no real crime involved, they could just go play jeopardy and ask you what you were doing minute by minute, and get you to talk until something gets inaccurate
Again, they must have reasonable suspicion to even detain you. You are reasoning about law codes as if they were literalist computer code for a compiler. The law, at least common law in America, is written by and for humans who are expected to exercise good faith as a part of enforcing and interpreting the law.
Do know your right to remain silent, and ask for a translator and consular assistance if detained or arrested. Police departments will provide these things because attorneys in court will question the reliability and admissibility of any testimony in the absence of their provision.
Don't worry too much about police if you're in America to visit. They're ordinary people who mostly want to catch criminals who are hurting their community. Bad apples are rare, and bad apples who harass someone on a tourist visa are rarer still.
Very few states have anything resembling this specific federal statute, and one doesn't typically call 911 to obtain service from federal law enforcement agencies. And in the case of a 911 call specifically, "heat of the moment" and "good faith" do a lot of work.
Unless you obviously intended to mislead an emergency services response, you will not be criminally implicated from good faith statements made during a 911 call regarding some incident you merely observed as a bystander.
> Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding.
Is it true that the law is only selectively applied to some people?
Seems if crimes are only crimes for normal people, theres rarely actual application of law for everyone. It instead shows itself to the governed as a system of control for them for the benefit of the leadership (since their friends absolve them of crimes, and also participate in the systematic neutering of any other forms of justice opposing their friends privileged behaviors).
Not saying this as a political thing to target one side like Biden/right and say Trump/left is clean. I'm saying I notice this in all levels both left and right.
But also I don't think a duress pin _usage_ should be legal, _during a lawful search_ (not unlocking your phone is a different topic, similar a duress pin which restarts your phone in lock-down mode to prevent extraction of encryption secrets from memory is another topic).
The reason is quite simple, allowing it would mean allowing actual criminals to delete evidence, which isn't desirable.
Through the "during a lawful search" part is the very important part.|And independent of weather or not the search in this case was lawful, _it shouldn't have been_. Boarder police expanded search powers should be limited to finding _physical_ smuggling/illegal goods, not phone searches (for _many_ reasons). And definitively not for a citizen without warrant, as this effectively means fundamental rights don't apply to US citizens when re-entering the US, which is ridiculous and IMHO should be found unconstitutional (sadly probably won't). (Also labeling activists as terrorist is a huge no-go for a state of law, so is making up supposedly committed crimes).
So while using a duress pin during a lawful search should IMHO always have some legal consequences, using it during a unlawful search should be fully allowed. But this still kinda sucks as finding a search unlawful requires a judge. Still if phone search in general aren't legal without warrant (IMHO they shouldn't) this would be a pretty simple case and the police should be required to drop charges without going to court if it's fully clear it is their fault...
That doesn’t pass the sniff test
18 U.S. Code § 1001 [1]
https://www.npr.org/2020/11/25/939064270/trump-pardons-forme...
> President Trump has issued a pardon to his first national security adviser, Michael Flynn. Flynn had pleaded guilty to lying to the FBI and then recanted.
Rules for thee but not for me.
make sure to give trump a payout and you too can loe to the fbi
Devil’s advocate, it sounds like the accused could be part of some mutual aid networks who could be helping people who are vulnerable against the actions of the current government. People who may die if they’re deported, or returned to their family (gay or trans youth). This person may literally have saved lives by not handing over their phonebook and messages.
my original comment was really just about the irony and the vage formulation wrt. legality was mainly there because I wasn't sure if there might be subtle differences between "destroying evidence yourself" and "deceiving officers to destroy evidence for you", both of which are obviously not legal
The level to which people insist on nitpicking formulations with the intend to intentionally misinterpret what meaning the author tried to convey is honestly frustrating. Weather it's people which think they can doge laws, make it ethical okay to scam people or start hate complain on twitter because someones post can be misinterpreted when nit picking it's formulation reading each sentence out of context it's all unproductive, destructive and IMHO pretty mean behavior. It's also IMHO quite quixotic(1) to believe the world does or should work that way, at least IRL/outside of X. I mean in which word is it desirable that criminals can doge legal responsibility through "clever speech" or similar.
Like getting back to this case
- sure the boarder police has to much power to harass people, sure some degree of search for physical smuggling goods is needed, but as there is little point in physically smuggling digital goods (assuming you aren't North Korea) any digital searching right requiring phone unlock is more then just one step too far. Especially given how this can be abused by unlawful officers, weather it's in context of impersonation, snooping into very private matter (e.g. sexting of wife) or outright trying to breach attorney-client privilege or size companies trade secrets
- similar him being internally labeled as a "terrorist" while most likely by any sane definition only being a "activist" is nothing new, but very much not what any state of law should do
- so anything leading up to the phone unlock requirement most likely shouldn't happen
- BUT iff there where a search warrant on him for an actual reasonable matter, then yes deceiving the officers to delete his data for him by giving them a duress pin _should_ have legal consequences. Everything else would be absurd. But also a ethical & legal warrant requires that there is a well founded suspicion of there being evidence in the searched places, e.g. based on evidence of the person being entangled into criminal activity or similar.
Or in other words the problem here isn't that using a duress pin has legal consequences, but that, from the facts we have, from a democratic/state of law POV, it should never have come to a point where he is under duress to give out the PIN. Which also seems to be roughly the direction his defense goes, but that isn't fully clear from the article.
Lastly there is a (slim) possibility of him actually being a criminal by any reasonable standard playing victim, sure it doesn't look like it. But it's worth mentioning as people love an underdog story and love to hate on police/boarder control, but not every underdog is a good person sometimes police does the right thing.
The entire situation is sort of nonsensical and boils down to lots of minutia in law that no normal person would know about.
For example having normal widely known security features like wiping the device after N failed PIN attempts is fine. Even having long standing security practices that can’t be related are fine, like having a timed touch point where if you don’t enter the PIN every… 15 days or whatever the device wipes, perfectly fine if it can’t be connected towards the crime and you’re not compelled to tell officers you have such a security mechanism.
Even if you were to set a trap where you use the same PIN for your bank, your laptop, and some other security devices in repetition then decide to set your duress PIN to that by assuming it would be discovered as a probable option they’d use, you’d be ok but it could be questionable if that was by design…
It’s so obscure really as to how and how you’re not allowed to protect your data, even if you’re not the one performing the action to clear destroy the potential evidence yourself. The entire thing seems pretty absurd a frankly arbitrary to me, and I don’t know how people could know which cases are and aren’t legal. I know not to destroy evidence myself but I wouldn’t know to tell someone to not use the duress pin or that even giving them my duress pin could somehow be my liability. It’s madness if you ask me.
One of the most depressing things I've read on here
If I have a dash-cam, and I wipe the SD card, can the government imply that because I erased the card, it must prove that I was speeding? The dash-cam automatically over-writes old footage - perpetually destroying evidence.
Given nebulous cases such as "hacking" a site by looking at the HTML[0], am I destroying evidence of crimes whenever I format my PC? I hope the government requires specific charges and more proof of a crime other than missing evidence. Say I destroy my diary - can the government claim that is the key evidence where I confessed to being the gunman on the grassy knoll?
For the duration of the border search. This guy is at risk because he caused the data to be deleted during a border search, when CBP asserts they can legally look. He would have been fine if he deleted data on the plane or after leaving the airport.
(This is my understanding of the government's position; personally I don't think this prosecution is constitutional)
If the erasure was a non-automated result of them asking you, and you alone, what conclusion do you think is possible? Probable?
Who said it was evidence? Did a judge authorize or issue a warrant to collect said evidence? Absent that, it's just your property, and you can do with it as you please.
Whatever the American legal system may say, a couple of thugs with no warrant conducting searches and seizures of data is a blatant violation of the Constitution's intent. This is the sort of behavior Americans used to rightfully condemn.
I'm all for privacy and find this seizure stuff really wrong but to me it just looks like another form of "orange man bad"
You're also essentially saying the same thing I did, because I'd argue most people already have a non-neutral stance on the subject.
Have you read United States v. Flores-Montano? The border search exception (which I disagree with) is pretty old. Can you find an era in which Americans in general found it objectionable or were united in rejecting its application to data?
An ”investigation” is just a fancy word that broadly describes the type of information collection that law enforcement does. Yes, it is typically about things they think are crimes. Because that’s their job. But there’s not some legal hurdle they have to pass here, the word describes their work.
instead they are harassing
If someone accuses you of a crime, committing a different crime is probably not a good move, in any situation.
“Hey! I saw you holding that Mexican pepper in Mexico, and then you threw it in that Mexican trash can before crossing into Texas!”
“Yeah, so?”
Why do people go sovereign citizen when reality doesn't work their way? Stop imagining that the way you want things to be is the way things really are.
Cops do not need a judge to authorize the seizing of evidence. Cops do not need judges to decide what evidence is. Tell me, why did you just pretend like these are real requirements? I can understand why you'd want it to be that, but you wanting it to be that doesn't change reality.
It's as if you've just learned about the Fourth Amendment but know nothing about the nuance behind it.
Your system wouldn't even work at all. Let's imagine the cops get a tip that a bald man with a blue tshirt shot a man. They patrol the streets and find a match. By your logic they should not have the ability to search the man and seize his gun as evidence until a judge issues a warrant.
And no, they wouldn’t have denied him entry, but they would have seized his device.
its not just a word, its a specific legal term
cops definitely do need judges to say what evidence is admissible, and they really dont have thr ability to just declare anything they want as evidence and just steal it
Though during traffic stops, if a defendant disposes of his drugs while on the run, that can also carry a charge of destroying evidence even though no warrant was issued.
IANAL
The textbook tampering with evidence example is: drug dealer tries to flush the drugs when the police knock on the door.
But yeah, people tamper with evidence because they think they can get away with it. That doesn’t mean they always succeed in cleanly doing it without creating evidence of the tampering itself.
For example: the police think you are running a fraud scheme. They knock on your door. You shred a bunch of paper. The police wanted to see the paper. You have violated the US law on tampering with evidence.
> 2. Review past legal cases against travelers and identify what behaviors the government considers worthy of prosecution or harassment. Your secure setup must function without needing you to engage in those behaviors, even if it is less convenient as a result. This isn't perfect, as the government may decide some new behavior is prosecutable.
> 3. Consult with a lawyer and review your security procedures from a legal standpoint. All of the above is technical and practical advice, not legal counsel and no substitute for it.
Just don't go to the usa and if it's for professional reason, don't bring your personal phone.
> If your threat model includes US state actors
It was not advice for everyone, nor even most people. I have plenty of friends abroad, and a few of them have even traveled to my country for the World Cup and had a grand time.
I roll my eyes at this kind of overreaction, the same way I imagine Europeans rolling their eyes to hear Americans worried about migrant crime news stories not wanting to travel to Europe. Or maybe they used to roll their eyes at that... I'm less sure now.
As a Canadian. I won't be going there for a long time
CBSA policy does state you are obligated to provide your password if they are conducting a lawful device examination, however they cannot do it arbitrarily, and they must have a legal basis for searching the device.
> CBSA policy states that examinations of personal devices should not be conducted as a matter of routine; such searches may be conducted only if there are grounds or indications that “evidence of contraventions may be found on the digital device or media.”
Furthermore, Canadian courts have not yet definitively ruled on whether compelling password disclosure is constitutionally permissible.
This is very different than the US, where CBP can conduct a basic search without any individualized suspicion.
So, Canada and the US are definitely not the same, which seems to be the implied meaning behind your comment, and your explicit statement that CBSA has legal authority to search your phone is, at best, misleading.
I’m not a lawyer or a legal expert so I could be wrong, so feel free to correct me if you have Canadian legal experience.
https://www.priv.gc.ca/en/privacy-topics/airports-and-border...
There actually not that special, requiring a visa in 35 countries compared to 25/26 for most European passports: https://www.passportindex.org/byRank.php
Unrestricted access to the US is probably the bigger advantage you get.
If your threat model includes US state actors at the national border, then your security practices need to account for the confiscation of your device at that border without requiring you to willfully wipe the phone and (in the eyes of police and prosecutors) destroy evidence.
That means:
1. Don't travel with anything you can't afford to lose on device. This means setting up travel-specific password managers and hardware keys for a subset of your accounts that you absolutely need to access while abroad, and being prepared to reset those passwords and disable those hardware keys very quickly once home.
2. Review past legal cases against travelers and identify what behaviors the government considers worthy of prosecution or harassment. Your secure setup must function without needing you to engage in those behaviors, even if it is less convenient as a result. This isn't perfect, as the government may decide some new behavior is prosecutable.
3. Consult with a lawyer and review your security procedures from a legal standpoint. All of the above is technical and practical advice, not legal counsel and no substitute for it.
We Americans are fortunate to carry powerful passports and enjoy relatively easy international travel but, for better or worse, that velvet glove covers an iron fist we would be foolish to forget or ignore.