18 ms·

How are they going to prove there was evidence of a crime? While destruction of potential evidence does introduce a certain amount of leeway that doesn't allow

by Guvante 2mo ago

How are they going to prove there was evidence of a crime? While destruction of potential evidence does introduce a certain amount of leeway that doesn't allow going from absolutely nothing to "evidence was on the wiped device". Most previous court cases involving encrypted devices have required substantial proof that the encrypted device contained incriminating evidence. To be clear "you sent this illegal thing from your house" levels of evidence. It mostly seems inept, if you are going to push to expand your powers you do it on strong cases where you know what happened. Doing it on weak cases like this gives a judge an opportunity to shut down that without giving you a chance of a meaningful conviction and without that you won't get any benefits...

gruez 2mo ago
>How are they going to prove there was evidence of a crime? They don't have to, only that you destroyed evidence. That's why many people get prosecuted with "obstruction of justice" rather than the actual crime. >While destruction of potential evidence does introduce a certain amount of leeway that doesn't allow going from absolutely nothing to "evidence was on the wiped device". So if someone was doing insider trading, and the SEC came knocking, then immediately afterwards they start burning every document they have and microwaving their computers, do you think they should get off the hook? Surely you must think, even if the authorities or society can't a priori know you were guilty, the subsequent activity should be illegal? Note this isn't the same as banning burning documents or microwaving computers, only doing so after you're aware there's an ongoing investigation.
- fluidcruft 2mo ago
  Destroyed evidence of what?
  - gruez 2mo ago
    Destroyed materials that might be relevant to an investigation that you know exists.
    - morkalork 2mo ago
      Hmmmm sounds like the government can launch endless bs investigations, wait for their target to throw something (anything, a piece of paper, whatever) in the trash then charge them with destruction of evidence. A infinite guilty-change glitch if you will.
      - gruez 2mo ago
        That's what judges are for, so cute hacks like "putting everyone in the US under "investigation" won't work. That said, if I was under investigation, you bet your ass I'd be extra diligent in ensuring I'm not accidentally shredding any documents.
      - nearbuy 2mo ago
        What you're describing is malicious prosecution or abuse of process. It's illegal and it would destroy the prosecution's case. Not only that, but the victim could sue for damages.
        tantalor 2mo ago
        Sort of like deliberately targeting somebody for his alleged association with the movement against Cop City?
        nearbuy 2mo ago
        Yes, much like that. If he hadn't destroyed evidence, he could have argued it was malicious prosecution.
  - grey413 2mo ago
    To quote the article: suspected terrorism activities because of his alleged association with the movement against Cop City Complete horseshit on many levels, but presumably a legally valid investigation.
    - fluidcruft 2mo ago
      Seems like they could have had a warrant in that case.
- mexicocitinluez 2mo ago
  > So if someone was doing insider trading, and the SEC came knocking, then immediately afterwards they start burning every document they have and microwaving their computers, do you think they should get off the hook? Apples and oranges. They presumably already have some sort of evidence in order to get a warrant and are under criminal investigation. According to the article the agents said it was just a normal part of screening.
  - gruez 2mo ago
    >They presumably already have some sort of evidence in order to get a warrant and are under criminal investigation. What if there was no warrant, and the SEC just came to ask questions?
    - mexicocitinluez 2mo ago
      If they came to ask questions, then they presumably already think I've committed a crime. This is not the same as randomly stopping someone and asking to see their phone.
      - gruez 2mo ago
        A trucker passes a weigh station and is signaled to pull in. As he's pulling in, he's seen dumping the contents of a bottle onto the ground. Is this destruction of evidence or obstruction of justice? He's not under any investigation (trucks are regularly weighed at weigh stations as a matter of normal procedure). A company is engaged in some white collar crime. They're tipped off that the DoJ launched an investigation on them. No warrants/subpoenas have been issued, and no investigators have shown up. The company instructs the IT team to scrub their email servers. Is this destruction of evidence or obstruction of justice?
        Supermancho 2mo ago
        > Is this destruction of evidence or obstruction of justice? The investigators can (and have) threatened both as a tactic, but when the charges are files, the specifics are what the prosecution thinks they can get a conviction on. I think it's understood that the law is interpreted, which has given great leeway to narrative.
- Guvante 2mo ago
  They need to prove you destroyed evidence, you have the mens rea component with the deceptive pin code but the defense can simply plainly say they didn't want the police to read their private device. Your example is fabricated since the justice department didn't even bring forward a specific crime they believe was committed here. If they charged him with a crime and had evidence his device had evidence of that crime (even if in reality it didn't) that would be a more interesting question. But again where is the crime?
  - gruez 2mo ago
    >with the deceptive pin code but the defense can simply plainly say they didn't want the police to read their private device. That's as convincing as saying you burned all the documents because you don't want people who break in to read all your financial records. It just happened to start after the SEC came knocking
    - wpm 2mo ago
      Except this isn't the SEC actually pursuing a voicable crime. This person was under no suspicion at all. They were simply coming home after being abroad: last I checked that is not a crime. Outside of a crime, "evidence" is just called property. If the TSA can't show "we have provable evidence gathered elsewhere to show that there was possible incriminating data on that phone" all they did was wipe this guys phone. All they had was pre-crime "he was involved in the movement against Cop City so we're gonna search his phone". No "he was meeting with terrorists in the DR". No "we have good reason to believe that when he was in the DR he communicated with terrorists". Just "uhhh we were looking for anything prohibited[1] and we targeted this guy because he was involved in some anti-cop protest group 3 years ago". If you can't see how insanely thin their argument is, and how easily this will be abused, I don't know what to tell you. We could just as easily say having any passcode on your phone at all is obstruction of justice, since the feds could want to look on your phone for whatever made up reason, and if they can't because its encrypted, well why did you do that? What are you trying to hide? Evidence of a crime!?!?! 1. I had to call out, "looking for anything prohibited" is a direct fucking quote from CBP. They admitted it was a fishing expedition.
- tamimio 2mo ago
  You have to prove it is an evidence of a crime to start with, speculation is not a fact. My property, my business, i can smash the phone and no one has anything to do or say unless there’s an undeniable fact that there’s an evidence there and it got destroyed, else, it’s no one’s business.
  - gruez 2mo ago
    >Note this isn't the same as banning burning documents or microwaving computers, only doing so after you're aware there's an ongoing investigation.
- zug_zug 2mo ago
  Well, good luck to them. If I'm on the jury and he argues "I got my passcodes confused" that's reasonable doubt for me.
dannyw 2mo ago
The career prosecutors at the DoJ are not the same as a couple years ago. I hope this case ends the same way as the sub sandwich assault.
- octoberfranklin 2mo ago
  If your legal system depends on the benevolence of prosecutors, you've already lost before it began. Attorneys are supposed to be adversarial. The system's soundness shouldn't depend on anything more than them trying to win and not doing anything illegal. Before "prosecutor" became an elected/appointed office, prosecutors were independent contractors, hired for a single case only and serving at the pleasure of the Grand Jury. The Grand Jury's job was to decide how to spend the public prosecution budget. "Indictment" meant exactly that "prosecuting this person is a good use of tax dollars" and nothing more. We should go back to that.
  - crooked-v 2mo ago
    The comment you're replying to was focused on prosecutorial incompetence, not benevolence.
    - octoberfranklin 2mo ago
      Whether to prosecute or not is not an objective question of competence.
      - blitzar 2mo ago
        A trained chimp could have gotten prosecuted the sandwich.
  - raincole 2mo ago
    Any system ultimately depends on the benevolence (or at least the decency) of the people in it. The idea that a society can design a perfect system and it will run itself is very dangerous.
- 2mo ago
TrackerFF 2mo ago
I'm not a lawyer, but my work domain revolves around data analysis of certain types of crime. Often times the suspects are flagged and under surveillance, so if and when they cross borders or go through check-points where you have a great deal of authority, they'll get searched. In many countries certain agencies / agents can do searches which normal law enforcement officers can't. Like not needing a search warrant or even probable cause. Not to mention that wiping a device could in itself be a crime, if it is suspected that evidence is being destroyed. The key point here is that, as I wrote, some agencies have a lot of authority, and have the power to do pretty drastic stuff.

by Guvante 2mo ago

gruez 2mo ago

>How are they going to prove there was evidence of a crime? They don't have to, only that you destroyed evidence. That's why many people get prosecuted with "obstruction of justice" rather than the actual crime. >While destruction of potential evidence does introduce a certain amount of leeway that doesn't allow going from absolutely nothing to "evidence was on the wiped device". So if someone was doing insider trading, and the SEC came knocking, then immediately afterwards they start burning every document they have and microwaving their computers, do you think they should get off the hook? Surely you must think, even if the authorities or society can't a priori know you were guilty, the subsequent activity should be illegal? Note this isn't the same as banning burning documents or microwaving computers, only doing so after you're aware there's an ongoing investigation.

fluidcruft 2mo ago
Destroyed evidence of what?
- gruez 2mo ago
  Destroyed materials that might be relevant to an investigation that you know exists.
  - morkalork 2mo ago
    Hmmmm sounds like the government can launch endless bs investigations, wait for their target to throw something (anything, a piece of paper, whatever) in the trash then charge them with destruction of evidence. A infinite guilty-change glitch if you will.
    - gruez 2mo ago
      That's what judges are for, so cute hacks like "putting everyone in the US under "investigation" won't work. That said, if I was under investigation, you bet your ass I'd be extra diligent in ensuring I'm not accidentally shredding any documents.
    - nearbuy 2mo ago
      What you're describing is malicious prosecution or abuse of process. It's illegal and it would destroy the prosecution's case. Not only that, but the victim could sue for damages.
      - tantalor 2mo ago
        Sort of like deliberately targeting somebody for his alleged association with the movement against Cop City?
        nearbuy 2mo ago
        Yes, much like that. If he hadn't destroyed evidence, he could have argued it was malicious prosecution.
- grey413 2mo ago
  To quote the article: suspected terrorism activities because of his alleged association with the movement against Cop City Complete horseshit on many levels, but presumably a legally valid investigation.
  - fluidcruft 2mo ago
    Seems like they could have had a warrant in that case.
mexicocitinluez 2mo ago
> So if someone was doing insider trading, and the SEC came knocking, then immediately afterwards they start burning every document they have and microwaving their computers, do you think they should get off the hook? Apples and oranges. They presumably already have some sort of evidence in order to get a warrant and are under criminal investigation. According to the article the agents said it was just a normal part of screening.
- gruez 2mo ago
  >They presumably already have some sort of evidence in order to get a warrant and are under criminal investigation. What if there was no warrant, and the SEC just came to ask questions?
  - mexicocitinluez 2mo ago
    If they came to ask questions, then they presumably already think I've committed a crime. This is not the same as randomly stopping someone and asking to see their phone.
    - gruez 2mo ago
      A trucker passes a weigh station and is signaled to pull in. As he's pulling in, he's seen dumping the contents of a bottle onto the ground. Is this destruction of evidence or obstruction of justice? He's not under any investigation (trucks are regularly weighed at weigh stations as a matter of normal procedure). A company is engaged in some white collar crime. They're tipped off that the DoJ launched an investigation on them. No warrants/subpoenas have been issued, and no investigators have shown up. The company instructs the IT team to scrub their email servers. Is this destruction of evidence or obstruction of justice?
      - Supermancho 2mo ago
        > Is this destruction of evidence or obstruction of justice? The investigators can (and have) threatened both as a tactic, but when the charges are files, the specifics are what the prosecution thinks they can get a conviction on. I think it's understood that the law is interpreted, which has given great leeway to narrative.
Guvante 2mo ago
They need to prove you destroyed evidence, you have the mens rea component with the deceptive pin code but the defense can simply plainly say they didn't want the police to read their private device. Your example is fabricated since the justice department didn't even bring forward a specific crime they believe was committed here. If they charged him with a crime and had evidence his device had evidence of that crime (even if in reality it didn't) that would be a more interesting question. But again where is the crime?
- gruez 2mo ago
  >with the deceptive pin code but the defense can simply plainly say they didn't want the police to read their private device. That's as convincing as saying you burned all the documents because you don't want people who break in to read all your financial records. It just happened to start after the SEC came knocking
  - wpm 2mo ago
    Except this isn't the SEC actually pursuing a voicable crime. This person was under no suspicion at all. They were simply coming home after being abroad: last I checked that is not a crime. Outside of a crime, "evidence" is just called property. If the TSA can't show "we have provable evidence gathered elsewhere to show that there was possible incriminating data on that phone" all they did was wipe this guys phone. All they had was pre-crime "he was involved in the movement against Cop City so we're gonna search his phone". No "he was meeting with terrorists in the DR". No "we have good reason to believe that when he was in the DR he communicated with terrorists". Just "uhhh we were looking for anything prohibited[1] and we targeted this guy because he was involved in some anti-cop protest group 3 years ago". If you can't see how insanely thin their argument is, and how easily this will be abused, I don't know what to tell you. We could just as easily say having any passcode on your phone at all is obstruction of justice, since the feds could want to look on your phone for whatever made up reason, and if they can't because its encrypted, well why did you do that? What are you trying to hide? Evidence of a crime!?!?! 1. I had to call out, "looking for anything prohibited" is a direct fucking quote from CBP. They admitted it was a fishing expedition.
tamimio 2mo ago
You have to prove it is an evidence of a crime to start with, speculation is not a fact. My property, my business, i can smash the phone and no one has anything to do or say unless there’s an undeniable fact that there’s an evidence there and it got destroyed, else, it’s no one’s business.
- gruez 2mo ago
  >Note this isn't the same as banning burning documents or microwaving computers, only doing so after you're aware there's an ongoing investigation.
zug_zug 2mo ago
Well, good luck to them. If I'm on the jury and he argues "I got my passcodes confused" that's reasonable doubt for me.

dannyw 2mo ago

The career prosecutors at the DoJ are not the same as a couple years ago. I hope this case ends the same way as the sub sandwich assault.

octoberfranklin 2mo ago
If your legal system depends on the benevolence of prosecutors, you've already lost before it began. Attorneys are supposed to be adversarial. The system's soundness shouldn't depend on anything more than them trying to win and not doing anything illegal. Before "prosecutor" became an elected/appointed office, prosecutors were independent contractors, hired for a single case only and serving at the pleasure of the Grand Jury. The Grand Jury's job was to decide how to spend the public prosecution budget. "Indictment" meant exactly that "prosecuting this person is a good use of tax dollars" and nothing more. We should go back to that.
- crooked-v 2mo ago
  The comment you're replying to was focused on prosecutorial incompetence, not benevolence.
  - octoberfranklin 2mo ago
    Whether to prosecute or not is not an objective question of competence.
    - blitzar 2mo ago
      A trained chimp could have gotten prosecuted the sandwich.
- raincole 2mo ago
  Any system ultimately depends on the benevolence (or at least the decency) of the people in it. The idea that a society can design a perfect system and it will run itself is very dangerous.
2mo ago

TrackerFF 2mo ago

I'm not a lawyer, but my work domain revolves around data analysis of certain types of crime. Often times the suspects are flagged and under surveillance, so if and when they cross borders or go through check-points where you have a great deal of authority, they'll get searched. In many countries certain agencies / agents can do searches which normal law enforcement officers can't. Like not needing a search warrant or even probable cause. Not to mention that wiping a device could in itself be a crime, if it is suspected that evidence is being destroyed. The key point here is that, as I wrote, some agencies have a lot of authority, and have the power to do pretty drastic stuff.