6 ms·

I'm kinda curious how the law would treat a dead man's switch that automatically wipes the phone if you haven't unlocked it for N hours (say, 24 or 48). (Assum

I'm kinda curious how the law would treat a dead man's switch that automatically wipes the phone if you haven't unlocked it for N hours (say, 24 or 48). (Assuming it was set up well before any event that prompted the phone's seizure, of course.) Could they somehow charge you for not warning the police about the auto-wipe when they took your phone? Does the answer change if you were officially under arrest and had a right to remain silent? This seems like a pretty good idea in any case. If the seizing party can't crack the passcode anyway then it's a no-op. If they can then presumably they won't/can't do it right away, so it would add a bit of defense in depth.

jedimastert 8y ago
That a good question. I don't know how related it is, but I haven't seen anything about the legality or illegality of warrant canaries[1], so there might be something to it. [1]https://en.wikipedia.org/wiki/Warrant_canary https://en.wikipedia.org/wiki/Warrant_canary
- onetimemanytime 8y ago
  So the law says NOT to notify users about secret subpoenas. If you do, no matter how cute you think your method is, IMO, you broke the law. Oh, but just I took a file offline. Nope. The law can be unjust but that's another thing.
  - 6nf 8y ago
    But I didnt even take a file offline. I just forgot to update it.
    - onetimemanytime 8y ago
      So you've updated it 45 times and the time you "forgot" to update coincided with the time you got the secret order?
      - sudhirj 8y ago
        Isn’t there a free speech aspect to canaries? Can the court force someone to publicly tell an explicit lie?
        martin1975 8y ago
        only if you're covert working for 3 lettered agencies can you lie and get away with it. Though they'd get you out some other way to avoid blowing your cover.
        deleted 8y ago
        [deleted]
        onetimemanytime 8y ago
        I would argue that you brought yourself in this mess. The only valid reason for having a canary is to evade the requirements of the law, so you can't complain. It's an argument, I'm no fan of secret orders or the government telling you to lie or keep quiet.
        Dylan16807 8y ago
        Fundamental rights generally override "you got yourself into this mess", don't they?
        coldtea 8y ago
        Well, the right to freedom of movement can be taken away if you've taken yourself into a mess that ends you in prison (and in tens of other cases for that matter).
        danso 8y ago
        Fundamental rights can be in conflict with each other. It's not uncommon for a judge to impose gag orders, which ostensibly protects a fair trial, but infringes on a person's rights to talk about a case in public.
    - yardstick 8y ago
      I’d expect a court to find against this in the same way it would find against someone communicating the information in a foreign language. It’s the intent and how you use the file that matters to them.
      - cyphar 8y ago
        The sticking point is whether you can be compelled to proactively lie by an NSL (when an NSL is actually a gag order, preventing you from talking about NSLs), given freedom-of-speech in the US. But quite a few people agree with you that courts probably wouldn't care about this level of pedantry[1]. [1]: https://www.schneier.com/blog/archives/2015/03/australia_outla.html https://www.schneier.com/blog/archives/2015/03/australia_out...
  - cyphar 8y ago
    That's not how warrant canaries work, though there is no case law I'm aware of that determines whether or not they are actually legal. The idea is that you have a message you update regularly to specify whether you have received an NSL -- you never delete the latest version. If you get an NSL you comply by doing nothing (and by your inactivity you've signalled that the warrant canary was tripped). There is a valid freedom-of-speech question (at least in the US) about whether you can be compelled to continue updating the message -- you can be forced to be silent but can you be forced to proactively lie when the NSL forced you to be silent? Though, of course, they could subpoena the signing key for the canary and destroying the key would be destruction of evidence. A quorum system for signing might be more robust against this, but I have my doubts. And of course quite a few folks think that warrant canaries wouldn't work in any case[1]. [1]: https://www.schneier.com/blog/archives/2015/03/australia_outla.html https://www.schneier.com/blog/archives/2015/03/australia_out...
    - CathyWest 8y ago
      Schneier is right. Warrant canaries are just another side of the same coin as the sovereign citizen movement. Word games and magical thinking is not going to fool any judges. While I do think secret warrants are unjust most of the time (and nobody can verify that they are justly applied when applied), the intent of the law is obviously to not let anyone know about the warrant, if you do you have broken the law regardless of how you did it. Any judge that rules otherwise is engaging in judicial activism.
      - cyphar 8y ago
        Maybe, though I would say that it is odd that some companies (who presumably have legal council) have decided to implement warrant canaries. Quite a few have "activated" them, though it's quite possible some lawyer told them to knock it off. It is at least a little less crazy than arguing that you are a free inhabitant and that you don't need a drivers' license. In Australia we have an explicit law which makes it illegal to talk about the existence or non-existence of a journalist surveillance warrant (though in Australia you might not even be aware of such a warrant's existence). This means that any discussion of such warrants is technically illegal -- making warrant canaries impossible to implement here. The minimum sentence is 2 years, and it's specifically targeted toward journalists (and affects anyone who shares already-public information -- so retweeting such a story on Twitter would be a serious crime).
- Joeri 8y ago
  Further down the wikipedia page there’s a link to moxie marlinspike saying warrant canaries don’t work because not updating them is legally the same as disclosing you’ve received a secret warrant. In other words, you have to lie in your canary or violate the warrant.
  - briandear 8y ago
    Has that been tested at the appellate level? The government can compel silence (gag orders,) but the government can’t compel speech, which is what updating a warrant canary is. This seems to be ready made for the Supreme Court.
    - hnick 8y ago
      There's also the question of a more manual implementation, rather than a self-initiated statement. If someone just so happens to ask me on Twitter each day if I received an order, and I say no, but on day 99 I don't reply or say "I'd rather not answer", does that muddy the waters a little?
tedunangst 8y ago
https://en.wikipedia.org/wiki/Spoliation_of_evidence https://en.wikipedia.org/wiki/Spoliation_of_evidence > The jury was instructed that they may find the failure by the store to retain (and subsequently provide to the other party) the additional footage may be considered an attempt to hide evidence that Brookshire Brothers' management knew would be damaging to their case. Although this may not be settled law.
- buzzy_hacker 8y ago
  But it continues > The Texas Supreme Court reversed, ordering a new trial, stating that it was abuse of discretion by the trial court to issue a spoliation inference instruction in this case, that the court should have imposed a different corrective measure on Brookshire Brothers (a less severe sanction), and that a spoliation inference instruction to the jury is only warranted in egregious cases of destruction of relevant evidence.
onetimemanytime 8y ago
>>Could they somehow charge you for not warning the police about the auto-wipe when they took your phone? They might charge but "I was arrested, my mind was going nuts...was setup a long time ago, never hit my mind" etc etc. You need to be doing it on purpose and knowingly.
- SiempreViernes 8y ago
  Well, unless you never needed to reset the switch while you kept evidence on the phone, you have demonstrated that you are aware of the system and actively worked to keep it running. That a system you knowingly and on purpose set up to destroy evidence then worked exactly as intended once arrested isn't a defence. You are probably better off just pretending it got bricked by some random software update.
  - onetimemanytime 8y ago
    >>That a system you knowingly and on purpose set up to destroy evidence then worked exactly as intended once arrested isn't a defence. Thieves also steal phones, not everyone is El Chappo's #2 guy
    - SiempreViernes 8y ago
      I'm not saying there is no legitimate reason for having that system, but if you reset the switch while knowingly having evidence on your phone then letting it triggering after being arrested is intentionally destroying evidence.
thaumasiotes 8y ago
> Does the answer change if you were officially under arrest and had a right to remain silent? Being formally under arrest doesn't affect whether you have the right to remain silent. It affects whether the police are required to tell you that you do.
- rv-de 8y ago
  In Germany - and I assume in the States as well - being a witness will place much more legal duties on you than being a suspect. A witness for example can be obligated to give testimony. Which is why police sometimes intentionally declares a suspect a witness.
  - dogma1138 8y ago
    In the US you have the 5th amendment which means you cannot be compelled to testify against yourself witnesses that may incriminate themselves would get an immunity deal before taking the stand the only time where you cannot invoke the 5th is during cross when you agreed to testify. Under certain cases in which your testimony cannot be used against you the court can compel you to testify if you refuse then you can be charged with contempt a common case for this would be a court ordering a reporter to disclose their source. But the prosecution classifying a defendant as a witness would not fly.
  - deleted 8y ago
    [deleted]
- marvin 8y ago
  Fascinating how this varies between nations and cultures. In Norwegian case law, refusing to explain yourself can be considered indirect evidence of guilt. I remember a report from a recent Norwegian criminal trial, where the judge himself warned the accused that refusing to give an explanation could reflect badly on the question of whether she was guilty or not.
  - empath75 8y ago
    Refusing to provide an alibi is going to cause you problems in the US as well, but generally in the US defendants talk through their lawyers, not directly.
cesarb 8y ago
There's already a weak version of this, in that most phones which have biometric authentication stop accepting it if the phone hasn't been unlocked for a few days.
Nasrudith 8y ago
I think it is essentially identical to deletion policies - except you probably don't have any legal requirements for minimum retention policies not a lawyer admittedly. Essentially they need to subpeona you to formally tell you to preserve all potential evidence and stop the deletions or take backups such that the day to day deletions are irrelevant. The later being a fine but important distinction that shredding extra copies of your own is okay. You wouldn't get arrested for copying a customer's account information to do profit margin math and then shred the copy when done to ensure their privacy. If you are unbound by other regulations there is nothing illegal about reimagining your device every 24 hours. If they were trying to keep a low investigation profile and never told you that you were to preserve the data the destruction of evidence is on their incompetence. If you implemented it post subpoena you are at fault of course.

jedimastert 8y ago

That a good question. I don't know how related it is, but I haven't seen anything about the legality or illegality of warrant canaries[1], so there might be something to it. [1]https://en.wikipedia.org/wiki/Warrant_canary https://en.wikipedia.org/wiki/Warrant_canary

onetimemanytime 8y ago
So the law says NOT to notify users about secret subpoenas. If you do, no matter how cute you think your method is, IMO, you broke the law. Oh, but just I took a file offline. Nope. The law can be unjust but that's another thing.
- 6nf 8y ago
  But I didnt even take a file offline. I just forgot to update it.
  - onetimemanytime 8y ago
    So you've updated it 45 times and the time you "forgot" to update coincided with the time you got the secret order?
    - sudhirj 8y ago
      Isn’t there a free speech aspect to canaries? Can the court force someone to publicly tell an explicit lie?
      - martin1975 8y ago
        only if you're covert working for 3 lettered agencies can you lie and get away with it. Though they'd get you out some other way to avoid blowing your cover.
        deleted 8y ago
        [deleted]
      - onetimemanytime 8y ago
        I would argue that you brought yourself in this mess. The only valid reason for having a canary is to evade the requirements of the law, so you can't complain. It's an argument, I'm no fan of secret orders or the government telling you to lie or keep quiet.
        Dylan16807 8y ago
        Fundamental rights generally override "you got yourself into this mess", don't they?
        coldtea 8y ago
        Well, the right to freedom of movement can be taken away if you've taken yourself into a mess that ends you in prison (and in tens of other cases for that matter).
        danso 8y ago
        Fundamental rights can be in conflict with each other. It's not uncommon for a judge to impose gag orders, which ostensibly protects a fair trial, but infringes on a person's rights to talk about a case in public.
  - yardstick 8y ago
    I’d expect a court to find against this in the same way it would find against someone communicating the information in a foreign language. It’s the intent and how you use the file that matters to them.
    - cyphar 8y ago
      The sticking point is whether you can be compelled to proactively lie by an NSL (when an NSL is actually a gag order, preventing you from talking about NSLs), given freedom-of-speech in the US. But quite a few people agree with you that courts probably wouldn't care about this level of pedantry[1]. [1]: https://www.schneier.com/blog/archives/2015/03/australia_outla.html https://www.schneier.com/blog/archives/2015/03/australia_out...
- cyphar 8y ago
  That's not how warrant canaries work, though there is no case law I'm aware of that determines whether or not they are actually legal. The idea is that you have a message you update regularly to specify whether you have received an NSL -- you never delete the latest version. If you get an NSL you comply by doing nothing (and by your inactivity you've signalled that the warrant canary was tripped). There is a valid freedom-of-speech question (at least in the US) about whether you can be compelled to continue updating the message -- you can be forced to be silent but can you be forced to proactively lie when the NSL forced you to be silent? Though, of course, they could subpoena the signing key for the canary and destroying the key would be destruction of evidence. A quorum system for signing might be more robust against this, but I have my doubts. And of course quite a few folks think that warrant canaries wouldn't work in any case[1]. [1]: https://www.schneier.com/blog/archives/2015/03/australia_outla.html https://www.schneier.com/blog/archives/2015/03/australia_out...
  - CathyWest 8y ago
    Schneier is right. Warrant canaries are just another side of the same coin as the sovereign citizen movement. Word games and magical thinking is not going to fool any judges. While I do think secret warrants are unjust most of the time (and nobody can verify that they are justly applied when applied), the intent of the law is obviously to not let anyone know about the warrant, if you do you have broken the law regardless of how you did it. Any judge that rules otherwise is engaging in judicial activism.
    - cyphar 8y ago
      Maybe, though I would say that it is odd that some companies (who presumably have legal council) have decided to implement warrant canaries. Quite a few have "activated" them, though it's quite possible some lawyer told them to knock it off. It is at least a little less crazy than arguing that you are a free inhabitant and that you don't need a drivers' license. In Australia we have an explicit law which makes it illegal to talk about the existence or non-existence of a journalist surveillance warrant (though in Australia you might not even be aware of such a warrant's existence). This means that any discussion of such warrants is technically illegal -- making warrant canaries impossible to implement here. The minimum sentence is 2 years, and it's specifically targeted toward journalists (and affects anyone who shares already-public information -- so retweeting such a story on Twitter would be a serious crime).
Joeri 8y ago
Further down the wikipedia page there’s a link to moxie marlinspike saying warrant canaries don’t work because not updating them is legally the same as disclosing you’ve received a secret warrant. In other words, you have to lie in your canary or violate the warrant.
- briandear 8y ago
  Has that been tested at the appellate level? The government can compel silence (gag orders,) but the government can’t compel speech, which is what updating a warrant canary is. This seems to be ready made for the Supreme Court.
  - hnick 8y ago
    There's also the question of a more manual implementation, rather than a self-initiated statement. If someone just so happens to ask me on Twitter each day if I received an order, and I say no, but on day 99 I don't reply or say "I'd rather not answer", does that muddy the waters a little?

tedunangst 8y ago

https://en.wikipedia.org/wiki/Spoliation_of_evidence https://en.wikipedia.org/wiki/Spoliation_of_evidence > The jury was instructed that they may find the failure by the store to retain (and subsequently provide to the other party) the additional footage may be considered an attempt to hide evidence that Brookshire Brothers' management knew would be damaging to their case. Although this may not be settled law.

buzzy_hacker 8y ago
But it continues > The Texas Supreme Court reversed, ordering a new trial, stating that it was abuse of discretion by the trial court to issue a spoliation inference instruction in this case, that the court should have imposed a different corrective measure on Brookshire Brothers (a less severe sanction), and that a spoliation inference instruction to the jury is only warranted in egregious cases of destruction of relevant evidence.

onetimemanytime 8y ago

>>Could they somehow charge you for not warning the police about the auto-wipe when they took your phone? They might charge but "I was arrested, my mind was going nuts...was setup a long time ago, never hit my mind" etc etc. You need to be doing it on purpose and knowingly.

SiempreViernes 8y ago
Well, unless you never needed to reset the switch while you kept evidence on the phone, you have demonstrated that you are aware of the system and actively worked to keep it running. That a system you knowingly and on purpose set up to destroy evidence then worked exactly as intended once arrested isn't a defence. You are probably better off just pretending it got bricked by some random software update.
- onetimemanytime 8y ago
  >>That a system you knowingly and on purpose set up to destroy evidence then worked exactly as intended once arrested isn't a defence. Thieves also steal phones, not everyone is El Chappo's #2 guy
  - SiempreViernes 8y ago
    I'm not saying there is no legitimate reason for having that system, but if you reset the switch while knowingly having evidence on your phone then letting it triggering after being arrested is intentionally destroying evidence.

thaumasiotes 8y ago

> Does the answer change if you were officially under arrest and had a right to remain silent? Being formally under arrest doesn't affect whether you have the right to remain silent. It affects whether the police are required to tell you that you do.

rv-de 8y ago
In Germany - and I assume in the States as well - being a witness will place much more legal duties on you than being a suspect. A witness for example can be obligated to give testimony. Which is why police sometimes intentionally declares a suspect a witness.
- dogma1138 8y ago
  In the US you have the 5th amendment which means you cannot be compelled to testify against yourself witnesses that may incriminate themselves would get an immunity deal before taking the stand the only time where you cannot invoke the 5th is during cross when you agreed to testify. Under certain cases in which your testimony cannot be used against you the court can compel you to testify if you refuse then you can be charged with contempt a common case for this would be a court ordering a reporter to disclose their source. But the prosecution classifying a defendant as a witness would not fly.
- deleted 8y ago
  [deleted]
marvin 8y ago
Fascinating how this varies between nations and cultures. In Norwegian case law, refusing to explain yourself can be considered indirect evidence of guilt. I remember a report from a recent Norwegian criminal trial, where the judge himself warned the accused that refusing to give an explanation could reflect badly on the question of whether she was guilty or not.
- empath75 8y ago
  Refusing to provide an alibi is going to cause you problems in the US as well, but generally in the US defendants talk through their lawyers, not directly.

cesarb 8y ago

There's already a weak version of this, in that most phones which have biometric authentication stop accepting it if the phone hasn't been unlocked for a few days.

Nasrudith 8y ago

I think it is essentially identical to deletion policies - except you probably don't have any legal requirements for minimum retention policies not a lawyer admittedly. Essentially they need to subpeona you to formally tell you to preserve all potential evidence and stop the deletions or take backups such that the day to day deletions are irrelevant. The later being a fine but important distinction that shredding extra copies of your own is okay. You wouldn't get arrested for copying a customer's account information to do profit margin math and then shred the copy when done to ensure their privacy. If you are unbound by other regulations there is nothing illegal about reimagining your device every 24 hours. If they were trying to keep a low investigation profile and never told you that you were to preserve the data the destruction of evidence is on their incompetence. If you implemented it post subpoena you are at fault of course.