Samuel Tunick, who faces a felony charge for deleting his phone’s data during an airport customs search, called the government’s peering into people’s private lives “creepy.”
My understanding is that he is not the person who deleted the data, the agent did it by entering the pin. That’s an interesting wrinkle. Is that materially different than entering the wrong pin 10 times which often also wipes the device?
Whoever, before, during, or after any search for or seizure of property by any person authorized to make such search or seizure, knowingly destroys, damages, wastes, disposes of, transfers, or otherwise takes any action, or knowingly attempts to destroy, damage, waste, dispose of, transfer, or otherwise take any action, for the purpose of preventing or impairing the Government’s lawful authority to take such property into its custody or control or to continue holding such property under its lawful custody and control, shall be fined under this title or imprisoned not more than 5 years, or both.
It’s clear that if he intended to wipe the phone and told the officer a password which would erase the contents, he “knowingly took an action for the purpose of preventing the Government’s lawful authority to take such property into its custody”.
Sounds like the best workaround for this is to have a deadman switch to delete all data if the phone hasn’t been unlocked in a 24 hour period? Then it is your inaction that results in the destruction of the data, and you’d still be complying with the statute.
That sounds awful. What if I don’t want to use my phone for 24 hours? Besides, if the government has tech to unlock your phone they will probably be able to use it pretty much immediately, so a time delay doesn’t really matter.
The problem. You cannot lie to an agent, but you can remain silent. Your also taking an action with a known consequence and an action that is not allowed.
My understanding is that he is not the person who deleted the data, the agent did it by entering the pin. That’s an interesting wrinkle. Is that materially different than entering the wrong pin 10 times which often also wipes the device?
Nah, it doesn’t change anything. The statute says
It’s clear that if he intended to wipe the phone and told the officer a password which would erase the contents, he “knowingly took an action for the purpose of preventing the Government’s lawful authority to take such property into its custody”.
That’s why you write the duress pin on a note and “hide” it poorly inside the phone case.
Honestly yeah, that’s the best solution if you want to do something like this.
But it getting wiped didn’t impede them from taking the property into custody
Data contained on the phone is very much the property which they wanted to take into custody or control, and it was wiped.
Sounds like the best workaround for this is to have a deadman switch to delete all data if the phone hasn’t been unlocked in a 24 hour period? Then it is your inaction that results in the destruction of the data, and you’d still be complying with the statute.
That sounds awful. What if I don’t want to use my phone for 24 hours? Besides, if the government has tech to unlock your phone they will probably be able to use it pretty much immediately, so a time delay doesn’t really matter.
The problem. You cannot lie to an agent, but you can remain silent. Your also taking an action with a known consequence and an action that is not allowed.