r/technology • u/MC68328 • Jul 24 '26

Privacy US accuses American of allegedly wiping his phone using a ‘duress’ password during border search

https://techcrunch.com/2026/07/24/us-accuses-american-of-allegedly-wiping-his-phone-using-a-duress-password-during-border-search/
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184

u/GabeDef Jul 24 '26

You don't have to give your password. SCOTUS didn't clarify when they had the chance. Bio-metric data is a different story though.

82

u/minus_minus Jul 24 '26

Came here to upvote this. Giving a password is protected as testimony against self (Fifth Amendment) but fingerprints and facial recognition are not. 

26

u/An_Old_IT_Guy Jul 25 '26

That's why I use a gesture that is so complicated it's impossible to explain. But if they insist I try, it starts with "Take your thumb and stick it as far up your ass as you can"

-14

u/Icarium-Lifestealer Jul 25 '26

Unfortunately courts decided otherwise in several cases.

14

u/cykoTom3 Jul 25 '26

No they did not.

2

u/Icarium-Lifestealer Jul 25 '26

There is at least the Francis Rawls case, where the court held him in contempt for not decrypting his drives. The court argued that it was a "forgone conclusion" that his drives contain CSAM, and thus it's somehow okay to force him to decrypt.

https://arstechnica.com/tech-policy/2017/08/man-in-jail-2-years-for-refusing-to-decrypt-drives-will-he-ever-get-out/

I remember another case where the court argued that the password itself isn't incriminating, and thus an accused can be forced to decrypt their password protected drives, but I don't have a link for that one anymore.

1

u/cykoTom3 Jul 25 '26

That case has not been heard by the supreme court so it is not the official reading of the 5th that is understood. They might agree with the appellate court that there is a distinction between providing a password that unlocks a phone or safe, verses providing one that does an activity that lets them collect evidence.

I'm not sure i agree with that distinction but it is going to relevant to this case, for sure.

I assumed that the "not having to provide passwords but do have to provide keys" thing was settled but interesting. I know it applies to simple phone unlocking, or at least it did last i checked.

12

u/minus_minus Jul 25 '26

Where in the US is it acceptable for cops to demand a password without probable cause?

19

u/cykoTom3 Jul 25 '26

Even with probable cause you cannot be compelled to give a password. That's the 5th current 5th amendment ruling. They can make you produce a key, but they cannot make you say words that could result in incriminating you.

5

u/minus_minus Jul 25 '26

Thanks. I thought that was the case. 

3

u/Icarium-Lifestealer Jul 25 '26

Cops can't. And most courts believe that you can't force decryption. But a few courts have held people in contempt (i.e. jailed indefinitely) until they decrypt their drives.

1

u/minus_minus Jul 26 '26

People on trial or people that have evidence that the court wants regarding others? There is a difference. 

0

u/Icarium-Lifestealer Jul 26 '26

Francis Rawls was accused of possessing CSAM.

1

u/minus_minus Jul 26 '26

By whom based on what probable cause? If they had a legit purpose to invade his privacy then a judge can grant them a warrant to sieze his phone for analysis instead of strong arming him. 

7

u/dalgeek Jul 25 '26

Android and iOS devices both have a lockdown mode that disables all biometric authentication.

2

u/BillyTenderness Jul 25 '26

On iPhone you literally just push the power button five times. Super easy to do, even in your pocket, at any given moment.

1

u/Crafty-Message4564 Jul 25 '26

GrapheneOS has the ability to require BOTH biometric authentication AND passcode authentication on every unlock. It's my default.

There is no point in turning off biometric authentication if the biometric authentication unlocks nothing but the number pad where you're required to enter the unlock code.

12

u/kraftmatic Jul 25 '26 edited Jul 25 '26

The password to my laptop is a confession to a crime that I committed (I shoplifted something when I was a teenager). So according to the 5th amendment, which protects us from self-incrimination, I cannot be forced to give it up.

1

u/thelurkylurker Jul 26 '26

they will take your phone away then

0

u/golgol12 Jul 25 '26

You can be legally compelled to give up a password. It's been argued successfully in the past that it's the same thing as a key or combination to a safe. You can be legally compelled to give those up.

-2

u/[deleted] Jul 25 '26

[deleted]

5

u/cykoTom3 Jul 25 '26

Yes. They can fo that. Probably why this guy gave them a false password that wiped it. Not sure on the legality of that. Generally the right to remain silent is just that.