In this particular case, there are also 5th amendment issues with the Miranda warnings.

The CBP officers repeatedly ignored the defendant's requests for a lawyer, and they continued to question him anyway. Then, the defendant allegedly told them the "unlock" / duress code.

There's existing case law in the US that phone unlock codes are "testimony" within the 5th amendment's right to remain silent, so a search warrant cannot compel someone to divulge them. (This is different from a phone unlock fingerprint, which can be compelled with a warrant).

I halfway expect the government to argue somewhat against this case law, but who knows? DOJ is now scraping the very bottom of the barrel to find lawyers, so sometimes it's hard to tell if they have any kind of coherent plan at all.

The phone owner is either outside of the US, where they don’t have jurisdiction, or inside the US where should be protected from this level of invasion of privacy

In the US, you don't have to specify what evidence was destroyed, but you DO have to offer a reasonable, articulated suspicion that a crime has occurred, you have to specify what crime has occurred, AND you have to specify the type of evidence you're looking for.

To use your burning down the house analogy, the police would have to say, "I think you're selling cocaine, based on the fact that I arrested someone leaving your house with cocaine and they said you sold it to them, and I want to search your house for cocaine," before they file destruction of evidence charges because you burned down your house.

They can't say, "I think you're selling drugs because I think you look like someone who sells drugs, and I want to search your house for anything that might be drug-related," and that's basically what happened here.

For the destruction of evidence charges to stick, they first need to present evidence that a specific crime might have occurred, and present evidence suggesting that evidence of that crime exists on the phone, AND specify what kind of evidence might exist. So, if they have text messages from another person, that could be used to prove another half of the conversation is on the phone. If someone testifies to pictures or videos existing on the phone, they can use that. But they can't just say, "SOME evidence of SOMETHING must have been on there."

It most likely is going to get tossed just on procedural constitutional violations- they didn't read him rights, didn't provide him a lawyer, and actively lied about what they were supposedly searching for.

Wow! You may be right here, not a SovCit, just European and not used to how the US criminalises their citizens in every way possible. For a country of “free speech” and “freedom” there sure are a number of ways you let the government walk all over you.

I wonder when they draw the line, could you be persecuted for deleting an email while at home before you travel? on the plane? What about in the security line?

In this case it’s just as likely that he accidentally gave the duress code instead of his actual pin, given zero crime this should be a valid and successful defense, although murca gonna murca.

I saw this same comment in the comments on the article and it just doesn’t make any sense. The owner of the phone didn’t burn anything down, the feds did. They were the ones with the device, they were the ones that typed in the code.

This would be like the federal government showing up to search your house, you saying “no”, they say “give us a key” (not the key to unlock, but a key) and you give them one set on fire and they light the house on fire themselves. You didn’t do anything except give them what they asked for, it’s their fault they didn’t realize what it would do. I believe if the defendant argues it properly in court there’s gonna be nothing the Feds can do, because he didn’t interfere with anything.

Maybe if the feds had asked for the passcode that let them into the phone so they could search it then that’s one thing. But I seriously doubt they did.

edit: in addition what he's being charged of is destruction of property to prevent seizure. The government still has the phone, they were not prevented from taking property under their control. This statute doesn't match in any sense of the word.

for the purpose of preventing or impairing the Government’s lawful authority to take such property into its custody or control or to continue holding such property under its lawful custody and control

Why go through all the hassle of getting a warrant when you can instead coerce the person you want to detain into doing something you can label as a criminal act and detain them for that.

So much less red-tape, and you get to stomp on someone's rights in the process. Sounds like an easy win to me /s

I agree, though I'm not sure how many of the current supreme court justices would - not enough, I fear.

Courts have repeatedly ruled that Border agents have the ability to perform searches without a warrant

• Free speech and free expression.
• Press freedom.
• If this incident is a sign of things to come, and they start going after Linux phones or tablets and Linux or BSD desktops or laptops next, device ownership.

When did non-white people ever have those in america? Those are privileges afforded to those of a certain melanin composition, not all americans equally. People who thought they benefited from so-called 'universal' liberties are quickly finding out that it was never universal to begin with. "Rights" have never been "universal" guarantees for American people. Not once in the history of this nation have rights been 'universally' applied. They have been case-by-case applied, and often people of a certain melanin composition benefited from the 'universal right' while others don't have the 'universal' aspect of those rights applied to them. This is not a coincidence and it is beneficial to no one to think it's just a coincidence—well at least it's not beneficial to anyone worth benefiting.

"All men are created equal"... except those ones over there

It's okay, we're still afraid to fuck off and die. They just don't say that part out loud because the dead can't pay taxes.

I’ll never forget that. Blatant cover up around one of our nations most shameful days in recent memory… that we know about. I’m sure this country commits atrocities daily that the American people don’t know about or otherwise wouldn’t believe.

I am going to try to be hopeful too

I saw one good suggestion here to just write down your duress pin and leave it in your wallet.

although true, so do such levels of security on most devices/OSs.

if you want this level of security on any device, it isn't by default-- even with GrapheneOS, you have to go to the trouble of actually installing it-- or go to the trouble of finding a device that actually comes pre-installed with it, which your local mobile provider does not sell

the point being that, for more than bog-standard security, some level of effort by the user will, yes, be required.

Yeah, they must have entered the wrong one

I was a bit talking out of my ass there. Also at this point not even being judicially right protects you I guess.

Duress PIN/Password GrapheneOS provides users with the ability to set a duress PIN/Password that will irreversibly wipe the device (along with any installed eSIMs) once entered anywhere where the device credentials are requested (on the lockscreen, along with any such prompt in the OS).

The wipe does not require a reboot and cannot be interrupted. It can be set up at Settings > Security & privacy > Device unlock > Duress Password in the owner profile. Duress PIN is solely used for PIN entry and duress password is solely used for password entry. Both a duress PIN and password are mandatory to enable the feature to account for different profiles that may have different unlock methods. Duress PIN will also wipe the device when entered as the two-factor fingerprint unlock PIN but not currently when entered as the SIM PIN.

Note that if the duress PIN/Password is the same as the actual unlock method, the actual unlock method always takes precedence, and therefore no wipe will occur.

Copy-pasted from GOS wiki