A U.S. citizen has asked a court to throw out the government's claim that he gave over a passcode to border authorities that wiped his phone's data, opening up fresh questions about a person's constitutional rights at the U.S. border.
Tunick’s attorneys accused the government of demanding access to his phone under the pretext of searching for child exploitation imagery, but without providing evidence to justify its suspicion.
Even if I had more information, I still wouldn’t have the law chops to predict where this may lead.
I don’t have those chops either. Also NAL. The wiki page says Tampering charges require there to be an ongoing investigation, which wasn’t the case here, so I’m thinking it wouldn’t apply. But! I wonder about spoliation. Spoliation before a case is brought, while not illegal per se, can result in negative inference,
spoliation inference is a negative evidentiary inference that a trier of fact can draw from a party’s destruction of evidence that is relevant to an ongoing or reasonably foreseeable civil or criminal proceeding
Negative inference, to my NAL understanding, means the tampered evidence may be taken in the worst light for the defense. Here, it’s all resting on flimsy and politically motivated pretext with no evidence. Still.
Needs an immigration lawyer to give an answer to this, but I’m thinking it may be legally safer to have strong encryption and refuse to unlock, rather than to wipe. Not unlocking isn’t tampering, so no spoliation, but wiping might be. Well, safest of all is to use a burner. But next best, strong encryption + don’t unlock. CBP can confescate the device, but they cannot compel you to produce a pw or unlock code.
From what I’ve gathered, I think you’re right to assume it’s legally safer to refuse to unlock rather than wipe. Also, worth noting that you can be compelled to unlock with biometrics, but not a password. On grapheneOS this means simply shutting off/restarting your device as it requires a pw after a fresh boot, even if biometrics is enable.
you can be compelled to unlock with biometrics, but not a password
Yah, I’ve been trying to get my friends to use a pw rather than biometric unlock, for that exact reason.
I’m batting like 0 for 5, lol. Biometrics are just too convenient I guess. Plus they don’t think it will impact them personally. Which is prob true. I still think it’s best to use the way that preserves more civil rights. I just can’t convince them.
Yeah, people have their own threat model and trade-offs they’re willing to make for security/convenience and it’s probably a lot lower for most people than if they knew more about the landscape and gave it careful thought. It sounds like other mobile devices might reencrypt after reboot. IDK about the pw v. bio, though, but if it’s like Grap.OS just convincing them to reboot their device before going through TSA checkpoints or other areas where their device might get confiscated may improve their security with minimal effort.
https://en.wikipedia.org/wiki/Tampering_with_evidence
Even if I had more information, I still wouldn’t have the law chops to predict where this may lead.
I don’t have those chops either. Also NAL. The wiki page says Tampering charges require there to be an ongoing investigation, which wasn’t the case here, so I’m thinking it wouldn’t apply. But! I wonder about spoliation. Spoliation before a case is brought, while not illegal per se, can result in negative inference,
Negative inference, to my NAL understanding, means the tampered evidence may be taken in the worst light for the defense. Here, it’s all resting on flimsy and politically motivated pretext with no evidence. Still.
Needs an immigration lawyer to give an answer to this, but I’m thinking it may be legally safer to have strong encryption and refuse to unlock, rather than to wipe. Not unlocking isn’t tampering, so no spoliation, but wiping might be. Well, safest of all is to use a burner. But next best, strong encryption + don’t unlock. CBP can confescate the device, but they cannot compel you to produce a pw or unlock code.
From what I’ve gathered, I think you’re right to assume it’s legally safer to refuse to unlock rather than wipe. Also, worth noting that you can be compelled to unlock with biometrics, but not a password. On grapheneOS this means simply shutting off/restarting your device as it requires a pw after a fresh boot, even if biometrics is enable.
Yah, I’ve been trying to get my friends to use a pw rather than biometric unlock, for that exact reason.
I’m batting like 0 for 5, lol. Biometrics are just too convenient I guess. Plus they don’t think it will impact them personally. Which is prob true. I still think it’s best to use the way that preserves more civil rights. I just can’t convince them.
Sheep will always be sheep.
Yeah, people have their own threat model and trade-offs they’re willing to make for security/convenience and it’s probably a lot lower for most people than if they knew more about the landscape and gave it careful thought. It sounds like other mobile devices might reencrypt after reboot. IDK about the pw v. bio, though, but if it’s like Grap.OS just convincing them to reboot their device before going through TSA checkpoints or other areas where their device might get confiscated may improve their security with minimal effort.