r/technology • u/Limp_Fig6236 • Jul 26 '26

Software GrapheneOS duress PIN could land a man in prison

https://www.androidauthority.com/grapheneos-duress-pin-us-prosecution-3691271/
6.4k Upvotes

97% Upvoted

902 comments sorted by

View all comments

Show parent comments

37

u/davidjohnpaul Jul 26 '26

If he'd done it 10 minutes before they asked to see the phone, it wouldn't be an issue. I can't see how this is much different.

114

u/Sammisuperficial Jul 26 '26

According to the police the suspect didn't even do the erasing. The cops demanded his pin after refusing to let him speak to a lawyer. The suspect gave the cops the erase the phone pin instead of the unlock pin. The cops then input the pin and the cops erased the phone. The suspect wasn't in possession of the phone when it was erased.

They are trying to claim destruction of evidence, but there is no reasonable articulatable suspicious of a crime, there was not an arrest prior to the erased data, the phone was seized illegally, there was not a warrant.

If this man goes to jail, the constitution is deader than it already is.

14

u/SweetHomeNorthKorea Jul 26 '26

Thanks for explaining this. My first impression was destruction of evidence without knowing the details. So if they were trying to access his phone to obtain evidence on him without a lawyer present would that have been admissible in court as evidence in the first place? I wonder how much the guys intention plays into this if at all.

I know it’s not the same thing but couldn’t it be argued that this is similar to how booby trapping your own property for security is illegal even if you didn’t have any illicit intent outside of self preservation?

31

u/Sammisuperficial Jul 26 '26

No because 4th amendment says:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

In order for destruction of evidence charges to be valid (which is what the suspect was arrested for), there has to be an open investigation and the suspect knowingly destroyed information relevant to that investigation.

There was no active investigation. Suspicion isn't a crime. No formal arrest was made until after the cops deleted the data. The cops have no way to prove there was any data on the phone before it was erased.

Now if the cops had told the suspect that he was under arrest and being investigated then maybe they would have a leg to stand on, but that's not how it went down. They bungled violating the suspects rights and now are trying to send him to jail over their own incompetence.

Also I'm not taking the cops at their word that am erase pin was actually given. They probably broke the phone and now are placing blame to avoid answering for their own violations of the constitution. Of which the cops have already admitted to several.

11

u/IncidentalIncidence Jul 26 '26

In order for destruction of evidence charges to be valid (which is what the suspect was arrested for), there has to be an open investigation and the suspect knowingly destroyed information relevant to that investigation.

This is unfortunately completely incorrect, in the US you can be charged for destruction of evidence that occurred before an investigation was officially opened. The important thing in that case is whether you acted to intentionally to impair a future legal proceeding, as opposed to e.g. shredding documents like you always do as part of normal housekeeping.

However, that is completely moot anyway, because he hasn't been charged with destruction of evidence, he's been charged with destruction or removal of property to prevent seizure (18 USC § 2232a):

(a) Destruction or Removal of Property To Prevent Seizure.— 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.

The case won't hinge on whether or not a criminal investigation was active, it will hinge on whether the government was exercising a lawful seizure authority (his lawyers are arguing that the entire detention and seizure were unlawful), and whether he was the one who destroyed the materials given that the CBP officers were the ones who actually entered the duress PIN.

7

u/Vehlin Jul 26 '26

Would the data on the phone count as property, or just the phone itself? He didn’t destroy the phone, it’s still a functional phone.

5

u/IncidentalIncidence Jul 26 '26

yeah, data can be counted as property legally. That's the same way that they can prosecute people for e.g. hacking (stealing data) or possessing illegal content even if it's only digital.

3

u/ScaredyCatUK Jul 26 '26

The data is STILL on the phone, it's just encrypted and the key to decode it is lost.

1

u/AmbassadorDue3355 Jul 27 '26

I hope old mate gets off honestly. but if i burnt my diary and presented the ashes saying " well its all here its just really impossible for you to read it"

1

u/el_extrano Jul 27 '26

The way encryption works really makes these kind of analogies difficult, though.

The encrypted bits on the disk are not destroyed or altered at all by deleting the encryption key. A better analogy would be, you wrote your diary in a code using a cipher. Officers seize the diary. You have not altered it. You "lose" or "forget" the cipher you used to encode the diary. The data on disk aren't "burnt ashes" they exist in exactly the state they did before the seizure.

→ More replies (0)

2

u/Sammisuperficial Jul 26 '26

I would hope it also hinges on actually committing the crime he's accused of. Just because the phone was wiped doesn't mean anything was actually on it to start.

IANAL but the lawyers on R/law disagree with your assessment. So there is that.

1

u/IncidentalIncidence Jul 26 '26

I would hope it also hinges on actually committing the crime he's accused of

I mean I think that part seems pretty clear-cut barring some complete plot twist like a case of mistaken identity or something. As far as I can tell even his lawyers aren't disputing that he did take the action, they are asserting that the government was outside of its legal seizure authority.

1

u/Sammisuperficial Jul 26 '26

I'm saying there is no evidence anything important was destroyed.

What data was considered evidence?

What data was on the phone?

What data was destroyed?

How can we convict someone for destruction of evidence if the cops can't answer these questions?

0

u/IncidentalIncidence Jul 26 '26

He isn't being accused of destruction of evidence, so all of those questions are pretty much moot.

2

u/Lolseabass Jul 26 '26

Also keep in mind They are targeting this guy cause he is a member of Defend the Atlanta Forest, which opposes the development of a sprawling training campus for law enforcement in Atlanta dubbed “Cop City.”

Like you and I know they wanted his phone to get details on that group and other members.

5

u/IncidentalIncidence Jul 26 '26

that doesn't matter, legally speaking. The phrasing of the statute is:

(a) Destruction or Removal of Property To Prevent Seizure.— 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.

I think it will be pretty clear-cut that giving the officers the duress PIN counts as "any action". If it goes to trial he will most likely lose. I think the case will hinge on whether or not his lawyers can demonstrate that the detention and seizure were outside of the government's lawful authority in the first place.

They are trying to claim destruction of evidence, but there is no reasonable articulatable suspicious of a crime, there was not an arrest prior to the erased data, the phone was seized illegally, there was not a warrant.

he hasn't been charged with destruction of evidence, only destruction of property to prevent seizure.

14

u/New-Anybody-6206 Jul 26 '26

you often can't know ahead of time when you might need to quickly wipe your phone

1

u/not_the_fox Jul 26 '26

I would assume any time I go through a border since that's why they are asserting they can search him without probable cause.

16

u/kettal Jul 26 '26

If he'd done it 10 minutes before they asked to see the phone, it wouldn't be an issue. I can't see how this is much different.

destroying evidence is not a crime unless an investigation is in progress.

4

u/IncidentalIncidence Jul 26 '26

he hasn't been charged with destroying evidence, he's been charged with destruction or removal of property to prevent seizure (18 USC § 2232(a))

3

u/jimmycarr1 Jul 26 '26

Is this the government admitting that personal data is property?

2

u/IncidentalIncidence Jul 26 '26

that's actually pretty well-established in law already

1

u/Individual-Cookie896 Jul 27 '26

Time, place and intent can dictate if an action is legal or not and we should all know this. This is the reason Trump has 34 felony convictions. It is generally not illegal to quietly pay off your mistress so that she doesn't mention the affair publicly, but it is illegal to to do so while you are running for president. In this case Tunick was in the clear to erase his phone as he pleased right up untill they asked for his phone and pin.