U.S. Citizen Deleted Phone’s Data. Now Faces A Felony Charge

[+ PhileasFogg]

Personally, I view the defense as a variation of pleading the fifth.  “If I give you this code, I might incriminate myself”

Alternatively, without a warrant, the government can search my trash can on the street, but not in my driveway.   

I understand that the way I “view” this doesn’t impact legal theory or precedent, but there’s barely a shade’s difference to this situation at the core.

Wiping the phone prior to entry doesn’t seem to be protected based on the article’s description of the stature 

 

[+ sync]

If "push came to shove," I would FedEx my phone to my home before going through Customs.

[+ SirBillybob]

2 hours ago, PhileasFogg said:

Wiping the phone prior to entry doesn’t seem to be protected based on the article’s description of the stature [statute]

At what particular point one’s legal duty to not obstruct inspection crystallizes is unclear: airspace, touchdown, the corridor hike to border control? The inspection process is imminent but there is not necessarily a bright line ruling other than broad border authority without the usual probable cause or warrant requirements.

Apparently, border officers face-to-face are not required to articulate they are assuming specific legal authority over one particular aspect of your belongings at the point you are told to open your luggage or device. It’s baked into the mandate of overall inspection. So I suppose a prosecution may proceed based on duress wipe that occurred at any point along the way, depending on the circumstances, just as if one tossed an illegal substance into a rubbish bin en route to the staffed inspection area. Yet destruction is distinct from obstruction is distinct from contempt for a lawful order, so it’s easy to get into the weeds here.

My advice: What would Rin Tin Tin on the leash think?

Edited August 3 by SirBillybob

[+ SirBillybob]

22 minutes ago, sync said:

If "push came to shove," I would FedEx my phone to my home before going through Customs.

It could end up with the name Wilson. 

[+ sync]

1 minute ago, SirBillybob said:

It could end up with the name Wilson. 

[+ SirBillybob]

3 minutes ago, sync said:

If you thought you were confused before …

Edited August 3 by SirBillybob

[+ SirBillybob]

6 hours ago, wsc said:

Sorry, don’t know why the quote function popped bold typeface then disappeared, but to the last paragraph points on warrant … 

The warrant idea speaks to government authority within the border control exceptionality that some find objectionable. However, there exists analytical tension between asserting the right to a warrant’s due process and the owner’s ability to frustrate that process. We cannot know his motives and he probably needed to think fast.

If I wanted to take a stand on the procedure, volunteering as tribute so to speak, insisting on a warrant would possibly subvert my claim of a right to irreversibly destroy contents before a search could occur, on the spot using a wipe procedure before the contents could be hacked by authorities with a pin workaround. If I wanted control and to not bank on the action of detonating phone data post-warrant post-confiscation, as well as to challenge the statute, then I would live with the absence of a warrant. 

That said, I assume that pursuit of a warrant requires probable cause. Otherwise, to the extent that border control inspection is random even within the very small subset examined, thousands of phones with innocuous content would be confiscated upon refusal to unlock them without the warrant step.

Similarly, given that a far greater number of locked suitcases are searched, that’s a lot of baggage piled up behind bars in the sobering up tank while waiting for court-executed warrants for owners refusing their contents’ examination. 

Edited August 3 by SirBillybob

[+ BOZO T CLOWN]

“If a traveler being admitted as a U.S. citizen does not present their device in a condition that allows for examination, the U.S. citizen traveler will not be denied entry into the United States based on CBP’s inability to complete an inspection of their device. However, as noted above, their device may be subject to exclusion, detention, or other appropriate action or disposition.”

https://www.cbp.gov/travel/cbp-search-authority/border-search-electronic-devices

CBP has broad discretion to enforce the nation's laws at all points of entry. Mr. Tunick's smart aleck behavior, giving the proverbial middle finger to law enforcement, may land him in federal prison for a while.

BTC
🤡

[+ sync]

2 hours ago, SirBillybob said:

If you thought you were confused before …

I resorted to the Urban Dictionary for some clarification of the volleyball with bloody handprint, and it gave me this:

Bloody Handprint 

Share definitionFlag

When doggy styling a dirty chick while she's ragging like hell mass producing blood, You rub your hand under her crotch making sure you get an abundance of period sweetness. While she's not paying attention, slap her dirty ass as hard as humanly possible.

Respectfully, you have confused me with someone else, that is definitely not my thing.  😝

[+ SirBillybob]

32 minutes ago, sync said:

Respectfully, you have confused me with someone else, that is definitely not my thing.  😝

Apologies. Neither you nor Tom Hanks, but he arguably owns the scene’s cinematic property rights. 

Regarding your phone’s contents I’m certain you understand far better than a Luddite like me how to technically remotely store them, later retrieving them at your convenience for your resumed personal use, while in the meantime comfortably submitting an empty device for inspection, as that format is not subject to border examination. 

But while we are on the subject, I thought that I had to bring my phone on board for fire safety reasons. How does that measure apply to the same device packaged for courier air cargo means of transport if ground postal service does not apply? Obviously, electronic devices are transported in this manner but I believe dangerous goods checks and balances apply. 

Edited August 3 by SirBillybob

[+ SirBillybob]

5 hours ago, PhileasFogg said:

… without a warrant, the government can search my trash can on the street, but not in my driveway.  

You tell them. 

[+ PhileasFogg]

1 hour ago, SirBillybob said:

You tell them. 

The point being - possession and dominion is key.     But I acknowledge your prior points that we are dealing in shades of grey that remain undefined…until someone advances a theory of law that definitively prevails…

[+ SirBillybob]

37 minutes ago, PhileasFogg said:

The point being - possession and dominion is key.     But I acknowledge your prior points that we are dealing in shades of grey that remain undefined…until someone advances a theory of law that definitively prevails…

Right. It’s legally trying to fit a square-ish shape into a round-ish hole.

I’m reminded of Paul Bernardo’s lawyer’s acquittal some 30 years ago on charges of obstruction of justice for having in his possession for some 17 months camcorder snuff material after Bernardo instructed him on where hidden, obviously relevant to the charges but particularly in relation to his partner in homicidal sex crimes Karla Homolka’s plea bargain and ‘turning state’s witness’ as it is termed down your way, absent the tapes subsequent eventual availability.

A case of possession not destruction, but it advanced, at the least, a clearer framework on privilege. The jurisdictional law entity in Ontario (at the time Law Society of Upper Canada) to which he was accountable eventually dropped disciplinary charges and focused on contextual framework as well. 

If I had to predict the American dude’s outcome, I would guess no jail time even if convicted; perhaps a suspended sentence. Clarification for the masses and statute governance taking precedence over a harsher penalty aimed at deterrence. What might also help his case is that I believe a vague suspicion regarding CSAM was verbalized to him or spearheaded the device search, yet it’s likely incontrovertible that there would be no other indicators of such a crime. 

Edited August 3 by SirBillybob

[+ JamesB]

While the federal government may believe it has a legally sound case for treating the destruction of encryption keys as destruction of property to prevent federal seizure, there are some significant legal and technical questions.

The storage device itself was not physically damaged or destroyed. Destroying the encryption keys simply makes the data unreadable; the encrypted data still exists on the drive exactly as before. The question then, is whether rendering data permanently inaccessible should legally be considered "destruction of property" when the property itself remains intact.

From a technical standpoint, the data is still there. Without the keys however, it is effectively unrecoverable. Whether that amounts to legal destruction is ultimately a question for the courts.

[wsc]

31 minutes ago, JamesB said:

While the federal government may believe it has a legally sound case for treating the destruction of encryption keys as destruction of property to prevent federal seizure, there are some significant legal and technical questions.

The storage device itself was not physically damaged or destroyed. Destroying the encryption keys simply makes the data unreadable; the encrypted data still exists on the drive exactly as before. The question then, is whether rendering data permanently inaccessible should legally be considered "destruction of property" when the property itself remains intact.

From a technical standpoint, the data is still there. Without the keys however, it is effectively unrecoverable. Whether that amounts to legal destruction is ultimately a question for the courts.

I think it's less a question of destruction of property and more one of obstruction of justice. If you flush the cocaine down a toilet, it is an act of destruction of property. But the police aren't after the cocaine for its own sake, but rather for its evidentiary value. Therefore, its destruction interferes with an investigation and in so doing obstructs justice. If instead of destroying the encryption keys the phone owner had locked the intact phone in a safe to keep it from the police, it is still an act intended to deny the police access to evidence of a possible crime and in that thwarts their investigation and obstructs justice.

I think the agents were too heavy handed in their actions and the lack of due process (no court issued search warrant) horrendous. But I would be very reluctant to throw the baby out with the bathwater, meaning to dilute an important legal principle because of sloppy procedural issues.

[+ JamesB]

47 minutes ago, wsc said:

I think it's less a question of destruction of property and more one of obstruction of justice. If you flush the cocaine down a toilet, it is an act of destruction of property. But the police aren't after the cocaine for its own sake, but rather for its evidentiary value. Therefore, its destruction interferes with an investigation and in so doing obstructs justice. If instead of destroying the encryption keys the phone owner had locked the intact phone in a safe to keep it from the police, it is still an act intended to deny the police access to evidence of a possible crime and in that thwarts their investigation and obstructs justice.

I think the agents were too heavy handed in their actions and the lack of due process (no court issued search warrant) horrendous. But I would be very reluctant to throw the baby out with the bathwater, meaning to dilute an important legal principle because of sloppy procedural issues.

The charge is not obstruction of justice. Prosecutors charged under 18 U.S.C. section 2232(a), “Destruction or removal of property to prevent seizure.” That statute makes it a felony to knowingly destroy, damage, waste, dispose of or otherwise take any action for the purpose of preventing or impairing the government’s lawful authority to seize property. It carries up to five years. The indictment specifically alleges that Tunick “did knowingly destroy, damage, waste, dispose of and otherwise take any action to delete the digital contents of a Google Pixel cellular phone, for the purpose of preventing and impairing the Government’s lawful authority.”

Your cocaine analogy is closer to a classic obstruction or evidence tampering theory. Section 2232 is narrower, it targets actions taken to keep property from being seized, regardless of whether a formal investigation or judicial proceeding has already begun. The government’s theory here is that wiping the encryption keys (via the GrapheneOS duress feature) destroyed the digital contents of the device in order to prevent its seizure in usable form. Whether deleting encryption keys while the physical phone remains intact constitutes “destruction” of the property under section 2232 is precisely the legal question the court will have to decide. The physical device was not damaged, the data became permanently inaccessible. That distinction is real and is not settled by the statute’s text alone.

On the procedural points we agree: the warrantless nature of the border seizure and the reported denial of counsel raise serious Fourth and Fifth Amendment issues that the defense is properly litigating. But those issues do not change the statute under which the government actually charged the case.

[wsc]

15 minutes ago, JamesB said:

The charge is not obstruction of justice. Prosecutors charged under 18 U.S.C. section 2232(a), “Destruction or removal of property to prevent seizure.” That statute makes it a felony to knowingly destroy, damage, waste, dispose of or otherwise take any action for the purpose of preventing or impairing the government’s lawful authority to seize property. It carries up to five years. The indictment specifically alleges that Tunick “did knowingly destroy, damage, waste, dispose of and otherwise take any action to delete the digital contents of a Google Pixel cellular phone, for the purpose of preventing and impairing the Government’s lawful authority.”

Your cocaine analogy is closer to a classic obstruction or evidence tampering theory. Section 2232 is narrower, it targets actions taken to keep property from being seized, regardless of whether a formal investigation or judicial proceeding has already begun. The government’s theory here is that wiping the encryption keys (via the GrapheneOS duress feature) destroyed the digital contents of the device in order to prevent its seizure in usable form. Whether deleting encryption keys while the physical phone remains intact constitutes “destruction” of the property under section 2232 is precisely the legal question the court will have to decide. The physical device was not damaged, the data became permanently inaccessible. That distinction is real and is not settled by the statute’s text alone.

On the procedural points we agree: the warrantless nature of the border seizure and the reported denial of counsel raise serious Fourth and Fifth Amendment issues that the defense is properly litigating. But those issues do not change the statute under which the government actually charged the case.

Thank you for the excellent clarification!