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.
  • litchralee@sh.itjust.worksEnglish
    2·
    5 天前

    To begin, the indictment document can be found here: https://www.courtlistener.com/docket/71998357/united-states-v-tunick/

    For the moment, I’m going to skip over a discussion of the government’s incredibly nebulous assertion that a US Citizen on US soil is somehow not entitled to protections from warrantless search/seizure of the phone, in stark contravention of settled law.

    What I wish to highlight is the peculiarity of the charge, because it’s quite novel. The single indicted offense is one count of 18 USC 2232(a). That section reads:

    (a) Destruction or Removal of Property To Prevent Seizure.— Whoever, before, during, or after any search for or seizure of property by any person authorized to make such search or seizure, knowingly destroys, damages, wastes, disposes of, transfers, or otherwise takes any action, or knowingly attempts to destroy, damage, waste, dispose of, transfer, or otherwise take any action, 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, shall be fined under this title or imprisoned not more than 5 years, or both.

    (my emphasis)

    The “lawful” part is what Tunick’s attorney will argue is missing, because this statute is clear that it only applies if the government is acting per the law. But I want to zoom in on the “takes any action” part, because although this case is about the digital contents and not the physical phone.

    Very obviously, he did not attempt to physically take back the phone, which is what this statute has historically criminalized. When it comes to the digital data, it is understood that the statute is about the copies that are stored on that particular phone. So as an example, if someone’s phone is synced up to Google Photos, then there are now two copies: one local on the phone and one on Google’s servers.

    The statute is understood to only affect the destruction of the local copies on the phone, once it has been seized by the government. The copy on Google’s servers is not subject to thus statute, because Google’s servers was not seized. Under 18 USC 2232, it would be a crime to remotely wipe a phone. But not to clear out a Google Photos account, although this could be a separate crime of obstructing justice. IANAL.

    So the question here is whether divulging a false unlock code is “knowingly” destroying evidence. Is it reasonably predictable that an agent will immediately try that unlock code, thus activating the erase feature? In an alternate world, the agent could have written down the code, kept the phone (which they did), and then allow Tunick back into the country, meanwhile the cybercrime division of the FBI determines whether they want to download the phone contents or not.

    That is to say, if government action (typing in the false unlock code) is additionally required to complete the crime, can that really be ascribed to Tunick?

    Consider that when the government inadvertently destroys evidence on their own, they cannot use 2232, such as failing to keep a computer powered up after seizure, resulting in all the RAM being lost. With that in mind, now imagine a phone where after entering a false unlock code, it starts a gacha game where failure to achieve a certain minimum score results in the phone being wiped. Can a phone’s owner be charged with a crime because the agent lacks mobile gaming skills? What if there were an entire maze of steps, where any failure resulted in erasure? In the alternate, what if there was no auto-erase mechanism and it’s just a simple “erase after ten wrong guesses” policy, and the agent already tried nine times?

    I have a suspicion that this will turn on how “knowlingly” means, when applied to a feature in GrapheneOS that is explicitly meant for this exact situation, and whether just saying any code would be grounds for the charge. It might be different if the agent asked him to type it in himself, since that’s a direct action. But telling someone a code and then they choose to type it in, eh.

    On a separate note, what’s telling is that the US Attorney did not charge him with lying to an agent. By definition, a false unlock code is not the code to unlock the phone. But who can say whether US Attorneys are still becoming of their office anymore.