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Problem is, if this catches on, CBP will just start asking whether you've got any encrypted volumes. If you say no, you're guilty of lying to a federal law enfo

Problem is, if this catches on, CBP will just start asking whether you've got any encrypted volumes. If you say no, you're guilty of lying to a federal law enforcement officer. If you refuse to answer they'll take that to mean yes, and they'll look a lot harder.

logfromblammo 8y ago
The legally correct answer to that question is "I do not consent to searches or seizures, and do not answer questions without my legal counsel present". But the practically correct answer is "I don't understand your question." or, more succinctly: "What?" No matter how much it catches on, there will still be people who have no idea what it is, and even if they have it, someone else may have set it up for them so they wouldn't need to know. Even if someone can prove you did understand the literal meaning of the question, you can always plausibly argue that you didn't understand why it was being asked in relation to the questioner's official investigative authority.
- roywiggins 8y ago
  Of course, you have plenty of defenses, including "I forgot about it". But the existence of a defense doesn't mean you want to have to argue it in court, and intentionally dissembling and/or obfuscating to a border agent is way, way down on my to-do list. > you can always plausibly argue that you didn't understand why it was being asked in relation to the questioner's official investigative authority. I don't think this is a defense. If it is a defense, they'll just preface the question with, "In order to safeguard national security, I need to know if you have any hidden accounts on here that aren't readily visible. Are there any?" Federal agents don't have to warn people that they might be prosecuted for lying. Also, if you lie to a border agent and you are anything other than a US citizen, that can be grounds to revoke your visa and ban you from the country. > Although you must know that your statement is false at the time you make it in order to be guilty of this crime, you do not have to know that lying to the government is a crime or even that the matter you are lying about is "within the jurisdiction" of a government agency. For example, if you lie to your employer on your time and attendance records and, unbeknownst to you, he submits your records, along with those of other employees, to the federal government pursuant to some regulatory duty, you could be criminally liable. https://www.wisenberglaw.com/Articles/How-to-Avoid-Going-to-Jail-under-18-U-S-C-Section-1001-for-Lying-to-Government-Agents.shtml https://www.wisenberglaw.com/Articles/How-to-Avoid-Going-to-...
  - logfromblammo 8y ago
    All this points to putting a stop to all this bullshit politically. Border agents are overstepping their granted authority when inspecting the data contents of an information-storage device, so I'd argue that if you lie to them as they are doing it, they are no longer acting in their capacity as a federal agent. Probably not an argument that a federal judge would agree with, but I can have my own non-lawyerly opinions on it. As it is also my opinion that if you keep a law on the books making it illegal to lie to federal agents, you must also have a law on the books saying that it is illegal for any federal agent to retaliate against or administratively punish any person for failing to answer questions. So, as an ancestor post mentioned, when the likely effect of a non-answer is to draw additional attention, that's clearly unfair to the traveler and their right against self-incrimination. All that is beyond the ken of the people actually interacting at the borders, so the only solution is to order their boss's boss's boss to write a memo, to pass down the chain of command, saying, "Stop doing this. It is not allowed." As it is now, the executive will continue to do as it pleases, without regard to folks rationally debating legality on the internet, and neither the judiciary nor the legislature is likely to bother to check it. So the only reliable short-term solution is to not carry such devices across the border at all. When the cops are stupid and cruel, following the law is not a defense. Appeasing them is not a defense. Fighting them is not a defense. There is no defense wherever they can still operate under the guise of legitimate authority. As a traveler, you are completely powerless. And that is unfair, and not something I am willing to tolerate from the US feds. But they don't exactly pay much attention to me with respect to such things--it's okay to step on nobodies; only the people with money matter to them now.
pariahHN 8y ago
The question then becomes whether or not they can prove you are lying. They still have the burden of providing proof. For someone who is not a US citizen it would not help as they can just be denied entry, but I imagine it would be much more difficult for them to reasonably hold a citizen for something they suspect but cannot prove for more than a few days. I think about this issue sometimes, and it always ends up coming back to how much power enforcement has if they do not yet have proof. If they can torture you without any sort of proof, then no hardware or software solution can protect both you and your data. It sucks that it has come to this, but short of legislative changes I don't think there is any other practical way to guarantee security of data at the border other than sticking it in the cloud and downloading on arrival, or using hidden volumes and not mentioning them. Even the cloud isn't really safe compared to hidden volumes - they can always ask about those too.
- roywiggins 8y ago
  The burden of proof for being charged is just probable cause, which is quite low. You wouldn't be held very long- unless you're deemed a flight risk by a judge, you'd be let out on bail. I think the risk is low for a random person, but if you're Julian Assange or someone equally interesting to the feds, and are known to use relatively sophisticated cryptography all the time, and an image of a phone taken at the border turns up evidence of a large encrypted partition that you denied existence of, I wouldn't put it past a prosecutor to put it to a grand jury and come out with an indictment.

logfromblammo 8y ago

The legally correct answer to that question is "I do not consent to searches or seizures, and do not answer questions without my legal counsel present". But the practically correct answer is "I don't understand your question." or, more succinctly: "What?" No matter how much it catches on, there will still be people who have no idea what it is, and even if they have it, someone else may have set it up for them so they wouldn't need to know. Even if someone can prove you did understand the literal meaning of the question, you can always plausibly argue that you didn't understand why it was being asked in relation to the questioner's official investigative authority.

roywiggins 8y ago
Of course, you have plenty of defenses, including "I forgot about it". But the existence of a defense doesn't mean you want to have to argue it in court, and intentionally dissembling and/or obfuscating to a border agent is way, way down on my to-do list. > you can always plausibly argue that you didn't understand why it was being asked in relation to the questioner's official investigative authority. I don't think this is a defense. If it is a defense, they'll just preface the question with, "In order to safeguard national security, I need to know if you have any hidden accounts on here that aren't readily visible. Are there any?" Federal agents don't have to warn people that they might be prosecuted for lying. Also, if you lie to a border agent and you are anything other than a US citizen, that can be grounds to revoke your visa and ban you from the country. > Although you must know that your statement is false at the time you make it in order to be guilty of this crime, you do not have to know that lying to the government is a crime or even that the matter you are lying about is "within the jurisdiction" of a government agency. For example, if you lie to your employer on your time and attendance records and, unbeknownst to you, he submits your records, along with those of other employees, to the federal government pursuant to some regulatory duty, you could be criminally liable. https://www.wisenberglaw.com/Articles/How-to-Avoid-Going-to-Jail-under-18-U-S-C-Section-1001-for-Lying-to-Government-Agents.shtml https://www.wisenberglaw.com/Articles/How-to-Avoid-Going-to-...
- logfromblammo 8y ago
  All this points to putting a stop to all this bullshit politically. Border agents are overstepping their granted authority when inspecting the data contents of an information-storage device, so I'd argue that if you lie to them as they are doing it, they are no longer acting in their capacity as a federal agent. Probably not an argument that a federal judge would agree with, but I can have my own non-lawyerly opinions on it. As it is also my opinion that if you keep a law on the books making it illegal to lie to federal agents, you must also have a law on the books saying that it is illegal for any federal agent to retaliate against or administratively punish any person for failing to answer questions. So, as an ancestor post mentioned, when the likely effect of a non-answer is to draw additional attention, that's clearly unfair to the traveler and their right against self-incrimination. All that is beyond the ken of the people actually interacting at the borders, so the only solution is to order their boss's boss's boss to write a memo, to pass down the chain of command, saying, "Stop doing this. It is not allowed." As it is now, the executive will continue to do as it pleases, without regard to folks rationally debating legality on the internet, and neither the judiciary nor the legislature is likely to bother to check it. So the only reliable short-term solution is to not carry such devices across the border at all. When the cops are stupid and cruel, following the law is not a defense. Appeasing them is not a defense. Fighting them is not a defense. There is no defense wherever they can still operate under the guise of legitimate authority. As a traveler, you are completely powerless. And that is unfair, and not something I am willing to tolerate from the US feds. But they don't exactly pay much attention to me with respect to such things--it's okay to step on nobodies; only the people with money matter to them now.

pariahHN 8y ago

The question then becomes whether or not they can prove you are lying. They still have the burden of providing proof. For someone who is not a US citizen it would not help as they can just be denied entry, but I imagine it would be much more difficult for them to reasonably hold a citizen for something they suspect but cannot prove for more than a few days. I think about this issue sometimes, and it always ends up coming back to how much power enforcement has if they do not yet have proof. If they can torture you without any sort of proof, then no hardware or software solution can protect both you and your data. It sucks that it has come to this, but short of legislative changes I don't think there is any other practical way to guarantee security of data at the border other than sticking it in the cloud and downloading on arrival, or using hidden volumes and not mentioning them. Even the cloud isn't really safe compared to hidden volumes - they can always ask about those too.

roywiggins 8y ago
The burden of proof for being charged is just probable cause, which is quite low. You wouldn't be held very long- unless you're deemed a flight risk by a judge, you'd be let out on bail. I think the risk is low for a random person, but if you're Julian Assange or someone equally interesting to the feds, and are known to use relatively sophisticated cryptography all the time, and an image of a phone taken at the border turns up evidence of a large encrypted partition that you denied existence of, I wouldn't put it past a prosecutor to put it to a grand jury and come out with an indictment.