5 ms·

I read a pretty compelling argument by a lawyer that we're looking at this the wrong way. (I Am Not A Lawyer) Their point was that if the law is knocking on yo

by gcanyon 2mo ago

I read a pretty compelling argument by a lawyer that we're looking at this the wrong way. (I Am Not A Lawyer) Their point was that if the law is knocking on your door to legally search your house, and you have records of your criminal empire printed out in boxes in your attic, or just non-illegal things you don't want people to see, and you burn those papers while the law waits out front, you're guilty of destroying evidence. The fact that this is all digital changes nothing. The problem is with the legality of the search, not the charge of destroying evidence.

cmiles74 2mo ago
I can sort of see what they mean if I squint some. Sure, destroying evidence to avoid a warrant is a crime and people understand this. OTOH this was a warrantless search, I’d argue this is materially different. AFAICT, people can still refuse to provide a password to evidence that may incriminate them. I also think scope is much, much larger than searching a home or office. The kind of data people have in their phone is far more private than the kind of stuff people would keep in a filing cabinet and there is far more of it. And a phone is easier to search. I mean, that’s why they put this guy on a list and waited for him to travel somewhere instead getting a warrant. Myself, I find this kind of searching of citizens to be pretty crazy and I can’t believe it’s allowed. My hope is this case brings this practice to an end.
- gcanyon 2mo ago
  >I find this kind of searching of citizens to be pretty crazy Agreed, and my original point: the issue is the search, not the charge being related to digital or physical information.
mctt 2mo ago
Evidence has not been destroyed. And if we are using that analogy the key to the locked box has been thrown away. No evidence was destroyed.
- gcanyon 2mo ago
  The phone was wiped, no?
  - mctt 2mo ago
    No. The encrypted data is still there, just the keys were wiped.
    - gcanyon 2mo ago
      Every article I've seen says "deleted"
      - mctt 2mo ago
        https://alan.is/insights/between-a-mugger-and-the-feds-what-duress-looks-like/ https://alan.is/insights/between-a-mugger-and-the-feds-what-... "The duress PIN does not overwrite data. It wipes the encryption key, making the data inaccessible but leaving it technically present on the storage."
amrit3128 2mo ago
But the issue here is the original charges were literally made up. There was no evidence whatsoever of him having anything related to CSAM on his device. At this point any cop can ask anyone to hand over their phone to search for CSAM.
globular-toast 2mo ago
Is there any evidence that evidence has been destroyed? To use the analogy I might just decide I don't want anyone reading my personal diary and burn it. It doesn't mean I destroyed evidence. If you knew it was evidence you wouldn't need to read it...
wefarrell 2mo ago
What if it didn't "destroy" the evidence, but instead encrypted it in a way that couldn't be decrypted at that moment? Or if it copied a snapshot some remote and inaccessible server while bricking the phone? The digital nature of the evidence does make this different than physical files.
hansvm 2mo ago
Destroying evidence is legal all day long, even with the law waiting out front, unless some other precondition is attached to that evidence destroying. One thing that makes it illegal is (over-simplifying) destroying it when you knew you had a duty to retain it. To the legal search example, suppose the police frequently stop by your house to discuss neighborhood gremlins. If they happened to accidentally see the boxes of evidence you'd be in trouble. You're allowed to destroy them though, and you might have a habit of destroying evidence for each of these gremlin chats. Doing so is legal. Later, the police show up with a warrant (your example). If you think you're doing your normal gremlin evidence destroying and not blocking that warrant, destroying that evidence is still legal even with the police waiting on your porch to legally, forcibly search your house. The _intent_ behind your actions, at least in this case, is a core component of the crime. Mind you, nobody will believe you, so you'll still have a hard time in court proving it (this is mildly in your favour because it's actually the prosecution's duty to prove your intent rather than your duty to prove lack of intent, but they're not exactly going to have a hard time convincing a jury that when you destroyed a bunch of evidence with police on your porch with a warrant it was because of that warrant), but it's still legal.
- nashashmi 2mo ago
  Once police open an investigation or once there is a lawsuit served, destroying evidence relevant to that lawsuit is illegal. The question here is whether the police were in investigation mode. I believe it is an overreach to claim that everybody at a border was going through an investigation. And it is also a overreach that everyone who is selected for search at the border is under investigation.
  - hansvm 2mo ago
    No, "knowingly" destroying evidence associated with that investigation is illegal. After a lawsuit is served, yes, it's probably pretty easy to prove ill intent. Opening an investigation may or may not suffice, and whether the police were in investigation mode is not the whole question. The prosecution has many individual elements they need to prove, _including_ intent.
  - 2mo ago

by gcanyon 2mo ago

cmiles74 2mo ago

I can sort of see what they mean if I squint some. Sure, destroying evidence to avoid a warrant is a crime and people understand this. OTOH this was a warrantless search, I’d argue this is materially different. AFAICT, people can still refuse to provide a password to evidence that may incriminate them. I also think scope is much, much larger than searching a home or office. The kind of data people have in their phone is far more private than the kind of stuff people would keep in a filing cabinet and there is far more of it. And a phone is easier to search. I mean, that’s why they put this guy on a list and waited for him to travel somewhere instead getting a warrant. Myself, I find this kind of searching of citizens to be pretty crazy and I can’t believe it’s allowed. My hope is this case brings this practice to an end.

gcanyon 2mo ago
>I find this kind of searching of citizens to be pretty crazy Agreed, and my original point: the issue is the search, not the charge being related to digital or physical information.

mctt 2mo ago

Evidence has not been destroyed. And if we are using that analogy the key to the locked box has been thrown away. No evidence was destroyed.

gcanyon 2mo ago
The phone was wiped, no?
- mctt 2mo ago
  No. The encrypted data is still there, just the keys were wiped.
  - gcanyon 2mo ago
    Every article I've seen says "deleted"
    - mctt 2mo ago
      https://alan.is/insights/between-a-mugger-and-the-feds-what-duress-looks-like/ https://alan.is/insights/between-a-mugger-and-the-feds-what-... "The duress PIN does not overwrite data. It wipes the encryption key, making the data inaccessible but leaving it technically present on the storage."

amrit3128 2mo ago

But the issue here is the original charges were literally made up. There was no evidence whatsoever of him having anything related to CSAM on his device. At this point any cop can ask anyone to hand over their phone to search for CSAM.

globular-toast 2mo ago

Is there any evidence that evidence has been destroyed? To use the analogy I might just decide I don't want anyone reading my personal diary and burn it. It doesn't mean I destroyed evidence. If you knew it was evidence you wouldn't need to read it...

wefarrell 2mo ago

What if it didn't "destroy" the evidence, but instead encrypted it in a way that couldn't be decrypted at that moment? Or if it copied a snapshot some remote and inaccessible server while bricking the phone? The digital nature of the evidence does make this different than physical files.

hansvm 2mo ago

Destroying evidence is legal all day long, even with the law waiting out front, unless some other precondition is attached to that evidence destroying. One thing that makes it illegal is (over-simplifying) destroying it when you knew you had a duty to retain it. To the legal search example, suppose the police frequently stop by your house to discuss neighborhood gremlins. If they happened to accidentally see the boxes of evidence you'd be in trouble. You're allowed to destroy them though, and you might have a habit of destroying evidence for each of these gremlin chats. Doing so is legal. Later, the police show up with a warrant (your example). If you think you're doing your normal gremlin evidence destroying and not blocking that warrant, destroying that evidence is still legal even with the police waiting on your porch to legally, forcibly search your house. The _intent_ behind your actions, at least in this case, is a core component of the crime. Mind you, nobody will believe you, so you'll still have a hard time in court proving it (this is mildly in your favour because it's actually the prosecution's duty to prove your intent rather than your duty to prove lack of intent, but they're not exactly going to have a hard time convincing a jury that when you destroyed a bunch of evidence with police on your porch with a warrant it was because of that warrant), but it's still legal.

nashashmi 2mo ago
Once police open an investigation or once there is a lawsuit served, destroying evidence relevant to that lawsuit is illegal. The question here is whether the police were in investigation mode. I believe it is an overreach to claim that everybody at a border was going through an investigation. And it is also a overreach that everyone who is selected for search at the border is under investigation.
- hansvm 2mo ago
  No, "knowingly" destroying evidence associated with that investigation is illegal. After a lawsuit is served, yes, it's probably pretty easy to prove ill intent. Opening an investigation may or may not suffice, and whether the police were in investigation mode is not the whole question. The prosecution has many individual elements they need to prove, _including_ intent.
- 2mo ago