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As the article says, it is probably a reasonable ruling, because it isn't a search. What you have to watch out for is the legal two-step, where they do somethi
by jerf 2y ago
As the article says, it is probably a reasonable ruling, because it isn't a search.
What you have to watch out for is the legal two-step, where they do something like "install a firmware on the phone", which isn't a search, and then, oh gosh, the firmware just happened to sit there and flash all the contents of the phone on the screen because that's what the firmware does, we didn't actually search the phone, it just voluntarily dumped all its contents to the screen, so that wasn't a search either, so no search occurred.
- koolba 2y agoDoes that mean that wiping the firmware or Secure Enclave would not constitute destroying evidence? How about installing firmware that will wipe the Secure Enclave on boot? Especially if the secondary step of turning on the device is done by the seizing authorities.
- fwip 2y agoNo, the judge would not be okay with that. In the same way, shredding all your incriminating legal documents into a fun jigsaw puzzle for the cops to put together is also illegal.
- toast0 2y agoI mean, having firmware that securely wipes your phone in case it's used by an unauthorized party is a reasonable and desirable feature. It's not generally illegal to set that up. Same with destroying documents. Having a retention period and destroying documents which have PII and could be used for identity fraud is a good practice. It's not generally illegal to do that either. Where you get into trouble with the courts is when you have a specific obligation to retain or transfer information and you destroy it instead.
- wildzzz 2y agoIt is illegal to intentionally destroy something that you suspect could be evidence in a future criminal case against you. Say you operate an illegal drug network from a specific phone that you've intentionally setup to self-destruct at reboot. Both you and the cops know there is likely evidence on there that would implicate you. Then, if you either intentionally reboot the phone or maybe the battery dies while in police custody before they can access it and the phone is wiped, you could be liable for destruction of evidence. However, if it's just a standard smartphone and you accidentally drop it in the toilet, unintentionally destroying all evidence, you may not be liable. Basically, if you intentionally destroy evidence, either actively passively, you're liable. It is kind of a broad law and is difficult to prosecute in many cases. The cops have to know that you did the crime and prove that the evidence existed. If you murdered someone and made it look like a suicide, the cops would have to not only suspect you but also know that you left fingerprints and DNA behind that are no longer present.
- PeterisP 2y agoIntent makes all the difference in the eyes of law. If a jury of your peers decides that you configured that firmware to protect your data from thieves, then it is not a problem. But if a jury of your peers doesn't buy your assertion of that, and instead becomes convinced that you applied that (otherwise reasonable and legitimate) feature with the intent to destroy evidence of a crime so that it doesn't reach the court, then setting it up was a felony.
- LPisGood 2y agoThis makes sense, and I actually believe that it isn’t a search. It is definitely a _seizure_ though and I do wonder how often these two things are distinguished in law. How often do the police raid a place and confiscate filing cabinets but not look through them.
- rayiner 2y agoThe seizure was done pursuant to a warrant too. There’s an argument that, once the warrant extensions expired, keeping the device in police custody constituted a continuing seizure. But it doesn’t seem like the defendant made that argument (or at least the court didn’t address that argument)
- giantg2 2y agoUsually one has to petition/request the return of seized items. So it's not unusual that something is still held until requested. Usually instead of fixing what they have, they tend to destroy it.
- btilly 2y agoYou and I disagree on reasonableness. The government is here deliberately planning to take advantage of a seizure to damage someone's personal possessions. The right of that person to be secure in their possessions therefore should require a higher standard from the government than is required for mere temporary adverse possession after a seizure.
- rayiner 2y agoThe government had a warrant to seize the device. It got multiple warrant extensions trying to get into the device. They determined it needed a logic board replacement. The warrant extensions expired while that was being done. But the government got a warrant to then actually access the data. I fail to see how this doesn’t satisfy even a high standard of reasonableness.
- fitblipper 2y agoWhy do you feel that info is relevant? If my driver's license expired yesterday and then I get pulled over while I'm driving to the DMV today to get it renewed, should I not get a citation? Just because they had permission before and after their actions took place doesn't make it ok if they didn't have permission at the time of the action. To say otherwise seems to be begging for abuse of a loophole. I guess that's why they had to claim the action wasn't one a warrant was required for...
- rayiner 2y agoIt’s relevant for the same reason it’s relevant in your driver’s license example. You drive somewhere while your license is valid. Then you replace the car battery, which has died. Then you renew your license, and drive somewhere else. Have you done anything wrong? No, because you need a license to drive the car, not to repair the car. Same thing here. The government needs a warrant to seize the device or search for information on the device. Does it need a warrant to repair a broken device that it has properly seized, before then getting a warrant to search the device?
- taneq 2y agoBreaking down the door of a house isn’t a search. Activating an autonomous drone in front of the house which then enters through the door of its own volition and records everything it sees in the house isn’t a search. And if I make a chomping motion in the air near a donut and it decides to enter my mouth while I’m chomping then I haven’t illegally taken a bite of the donut.
- zzo38computer 2y agoWhether or not it is a "search", it is trespassing, and they should make the constitution to protect against that too (I don't know whether or not it already means that or whether or not it is intended to mean that). Protecting against "unreasonable search and seizures" should also include protecting against trespassing.
- nyeah 2y agoI sense irony here, but I'm American so it's hard to be sure.
- taneq 2y agoI dunno if irony is exactly the right word (but that's a complex discussion and probably any call would be category-error-ish anyway) but I was aiming for a Simpsons reference. :D
- deleted 2y ago[deleted]
- ortusdux 2y agoI guess I can understand the argument that picking a lock does not count as a search, but the second you open the door...
- qup 2y agoLike removing the doorframe and putting in your own new door that doesn't lock, then walking inside
- tiahura 2y agois when they got the warrant
- ortusdux 2y agoI guess that is the question. If the police are confident that they will have a warrant in 30 minutes, can they have a locksmith unlock the door while they wait?
- BobaFloutist 2y agoI would say no, because the whole point of the warrant is to remove the police's judgement from the equation. If they're taking action based on their expectation that they'll get it, that's kind of an end-run around the stated purpose.
- deleted 2y ago[deleted]
- thayne 2y agoWhat if picking the lock damages the lock?
- yencabulator 2y agoYeah. It might not be a search, but it's something, and the logical question is to ask under what authority can that be done.
- gnfargbl 2y agoAh, but standard firmware doesn't do that; the agency performing the action would need to have developed custom firmware which "just happened" to show the information when installed. Courts tend to see through those kinds of shams.
- wbl 2y agoNo that would be a search. Judges really don't like having these games played.