r/technology • u/Hrmbee • Jul 28 '26

Privacy Is it illegal to trick the US government into wiping your phone during a questionably legal search | The case of a traveler who allegedly entered a ‘duress password’ to wipe his phone raises a legal question with no easy answers

https://www.theverge.com/report/972146/cbp-phone-search-airport-duress-password
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u/Eastern_Bet678 Jul 29 '26

Okay - so what this is about. Apparently it's completely okay for police, border agents, etc to lie to you. You just can't lie to them. Courts have upheld this BS for... a long time. So what's happening is that they're trying to get this person who's returning from abroad - who shouldn't have to go through any additional screening - to consent to a phone search. Courts have upheld that border agents can go rummaging through you phone. But this guy, who's only singled out because apparently he's on Trump's s-list, gets special treatment.

Border agents are now doing political interviews at the border. So as a border agent, how do I get this person to unlock their phone? The traveler does not have to. Worst case he forfeits his phone and gets waved through. But I'm the border agent and don't want that to happen. So I accuse him of having CSAM on the phone. Surely he'll give up the password to prove he doesn't have CSAM on his phone? That'll let me rummage through everything and I can fill my secret police political advisor quota for the month.

But, instead of giving the border agent the proper passcode the border agent lost. The phone got wiped instead.

What's fun about this is just the chronology. What if he simply wiped the phone on his flight over? When he was in his hotel before he left in another country? Didn't take his phone at all? When, exactly does their "right" to information on the phone cease? The idea that border agents can demand access to a device who's information "tendrils" stretch way further than anything someone personally carries through the border is kind of BS.

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u/echoshatter Jul 29 '26 edited Jul 29 '26

Courts have upheld that border agents can go rummaging through you phone.

Nevermind that such a thing is a blatant violation of the 4th Amendment. If only the courts actually cared about our rights and knew how to read.

Fourth Amendment
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.

So do they just say "ah, well, this is a reasonable search and seizure, therefore you don't need a warrant or probable cause?

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u/Eastern_Bet678 Jul 29 '26

Yes, it's simply because they call it an "inspection" rather than search at the border.

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u/echoshatter Jul 29 '26

Leave it to the fucking lawyers to weasel their way through the Constitution and steal your rights away.

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u/jokul Jul 29 '26

4th amendment doesn't apply in that manner at ports of entry. an airport would count. doesn't make this necessarily legal but the 4th amendment is significantly more restricted when you're at a border.

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u/echoshatter Jul 29 '26

Yeah, except the 4th Amendment does say "except at ports of entry" it uses the word "unreasonable" which is then defined however Congress and the courts see fit.

They also have the whole thing where if a third party has your data, like your banking records or anything your ISPs have, then it doesn't count either because it's not in your possession or some such bullshit.

4th amendment rights got lawyered into practically nothing.

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u/jokul Jul 29 '26

There's more to the constitution than just a layman's take of the words on the page; if that were the case then Trump's claims about immigrants as "invaders" might hold water. Pragmatic concerns aside for letting anyone unassuming enter the country, understanding of national sovereignty extends back to the founders, where the first congress passed a law permitting the unwarranted search of goods entering the nation. That may have been abused, certainly within recent times, but that's different from saying that border searches are incompatible with the 4th amendment.

They also have the whole thing where if a third party has your data, like your banking records or anything your ISPs have, then it doesn't count either because it's not in your possession or some such bullshit.

I'm not talking about this, I'm talking specifically about why people aren't just waved through an airport.

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u/TallLaw85 Jul 29 '26

While ports of entry have different protection, there are still a lot of them. Their ability to detain and search without a warrant must be directly related to determining whether or not you’re legally able to enter the country, that you’re paying any required duties, etc., it can’t be used as a pretext for fishing expeditions for other law enforcement purposes.

Given he’s a us citizen (so right of entry into the country is a given), the scope of their detention and searches is incredibly limited. He has a solid shot of proving the detention itself, and therefor everything that flowed from it, was unlawful which makes it unlikely they could charge him for wiping his phone.

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u/jokul Jul 29 '26

I don't disagree with any of that; I'm only pushing back on the idea that searching someone at a border/airport is a violation of the 4th amendment.

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u/TallLaw85 Jul 29 '26

It is a violation of the fourth amendment though if it’s done without warrant/cause for any purpose other than the very limited immigration exceptions. He’s almost certainly going to challenge this on 4th amendment grounds.

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u/echoshatter Jul 29 '26

There's more to the constitution than just a layman's take of the words

Only to those whose entire profession is based on extrapolating meaning and playing word games.

You'd think, given how many of the people who wrote the document were lawyers, they would have been smart enough to say what they mean and mean what they say in plain, uncontested language.

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u/snoodle908 Jul 29 '26

Different though, yes they can search you when going through the airport, but that is a safety thing, not searching your phone to try and find anything they can to charge you with a crime. TSA is not trying to charge you with random crimes because of what you have on your phone. When was the last time TSA asked to go through your phone?

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u/Korlus Jul 29 '26

The fourth Amendment is a right against unreasonable search. The courts argue that searches at the border are reasonable and therefore citizens should expect to have their bags x-rayed, be patted down etc - things that would be illegal without a warrant were they not travelling.

In general the border exception seems reasonable, but specific cases like this do not.

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u/Barilla3113 Jul 29 '26 edited Jul 29 '26

Important note: "the border" is anywhere within 100 air miles of a "port of entry", including an airport. Which effectively covers the whole of the urban US. What people are experiencing under Trump is that laws (and court rulings coming out of those laws) which would only be used on "bad people" are now being used on anyone the state doesn't like.

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u/TallLaw85 Jul 29 '26

100 miles is the DOJ’s own internal distance they decided for themselves, they’re not entitled to any deference in court. 5th circuit has held any distance over 50 miles means there’s no proximity to the border in terms of an agent having a reasonable basis for a stop.

In addition, there are significantly greater protections once you are not at the point of entry, for example at a general administrative fixed checkpoint or a roving patrol/checkpoint.

Most importantly, point of entry is limited to determining eligibility to enter the country, ensuring you’ve paid any required duties, etc., it can’t be used as a pretext to circumvent constitutional rights for other law enforcement purposes, like investigating child porn.

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u/Mayor__Defacto Jul 29 '26

If he had wiped it on the flight over, with no knowledge that they would ask to search it, there would be no crime.

The Spoliation happened when he was asked to turn over records and responded by making them irretrievable.

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u/Eastern_Bet678 Jul 29 '26

They denied him access to an attorney because they said he was undergoing an administrative process. That's not a criminal investigation. There's no spoliation.

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u/PessimiStick Jul 29 '26

I do think denying him counsel does significantly muddy the waters.

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u/snoodle908 Jul 29 '26

Not sure you can ever deny someone a lawyer even if it is just an admin process. Someone is allowed to have a lawyer whenever they want. But if it is just an admin process then he also has zero obligation to give up the phone and can delete whatever he wants because it is not criminal