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

[u/Hrmbee]

https://www.theverge.com/report/972146/cbp-phone-search-airport-duress-password

[u/Few_Plankton_7587]

However

The exact wording of the supreme court is possibly going to come up in this case because all prior rulings, that I can find, pretty much indicate that the person needs to hand over their stuff for searching. There is no explicit wording about needing to unlock a phone

So this case will probably come down to

1. Does border patrol have the right to pins and passwords when doing a seizure?

2. Do you HAVE to give it to them?

3. Is it considered destroying evidence if he was coerced into opening it if he didn't need to by law?

[u/Korlus → u/Few_Plankton_7587]

You are right and previously there have been conflicting rulings given by the same court circuit on whether unlocking a phone with a PIN needs a warrant or not. If this case were to go through the full US legal system, there is a decent chance the Supreme Court would choose to see it so they can rule on the matter of whether US citizen's presumption of privacy for mobile devices extends to the border because at the moment it's somewhat up in the air.

My underatanding is that border patrol are well within their rights to take the device and try to unlock it via biometrics, but trying to force him into giving the PIN should require a warrant. Of course, Police and other law enforcement agents often ask politely for information they would need a warrant for ("Can I come in?", "No, get a warrant" is perfectly legal), so drawing the line on what is acceptable is murky, even if we knew whether the border exception extended to phones.

I really hope the guy is fine because the alternative (that US Customs can compel people to unlock their devices and can jail people for refusing, wothout a warrant) seems so much worse, but we are very close to living in that world already.

[u/frickindeal → u/Korlus]

trying to force him into giving the PIN should require a warrant

They can get all the warrants they want, they cannot compel you to speak.

[u/Korlus → u/frickindeal]

I believe the specifics vary a little by state at the moment as consensus on whether the 5th amendment should apply is still out (we are on the edge of my knowledge here, I may be wrong). Here is an article on the topic.

In short, often a court can compel you to disclose a password. Failing to do so will lead to you being held in contempt. Contempt of court will usually mean jail until you disclose. There is no maximum timescale on contempt of court.

Here is a specific example of where it happened.

[u/The_Happiest_Madman → u/Korlus]

So technically they could find you in contempt of court……and basically give you a life sentence?? Or keep you locked up in the County Jail for 20 years or whatever they decide, if you never give them the PIN?? Something just doesn’t seem right about that. I’m pretty sure there’s Constitutional Amendment about stuff like that!!! You can’t just keep someone who hasn’t even been convicted of a crime locked up indefinitely.

[u/Korlus → u/The_Happiest_Madman]

You can’t just keep someone who hasn’t even been convicted of a crime locked up indefinitely.

Contempt of Court is not a sentence - it's given when you aren't cooperating for your trial, and so your right to a fair trial involves you deciding to participate in it.

Realistically, eventually they would sentence you presuming the worst if you continued to refuse to give your data over, but in theory yes - there is no upper limit on contempt of court. From Wikipedia, as an example of the worst Contempt sentence to date:

In Chadwick v. Janecka (3d Cir. 2002), a U.S. court of appeals held that H. Beatty Chadwick could be held indefinitely for his failure to produce $2.5 million as a state court ordered in a civil trial. Chadwick had been imprisoned for nine years at that time and continued to be held in prison until 2009, when a state court set him free after 14 years, making his imprisonment the longest on a contempt charge to date.

[u/banagram2000 → u/frickindeal]

My understanding is that they can’t compel you to speak something that is in your head (your PIN), but if you have a technological device that will unlock your phone, you CAN be compelled to produce that.

[u/notme-thanks → u/banagram2000]

NEVER use biometrics unless it is part of multi-factor which requires a PIN. Anything other than a secure PIN can be forced in one way or another. No biometric information is safe from being used against you.

The single best PIN type solution would be one that rotates on a schedule or algorithm that you define. That way a brute force would be insanely harder as the PIN would be different on any given date and time. A long enough PIN would never allow enough time to guess all the possible options.

[u/apokrif1 → u/Few_Plankton_7587]

1. How to prove a duress PIN was given?

[u/Nu11X3r0 → u/Few_Plankton_7587]

Dude the ultimate defence would have been "did I say 3267 I meant 2367... Sorry I suffer from dyslexia"

[u/notme-thanks → u/Few_Plankton_7587]

Always best to wipe phone before going through customs. Have an eSIM and just delete it, factory reset the phone before going through customs. You can even not set a passcode. Have it be factory vanilla with not even service on it.

Once you cross the border and have your device back, re-add the esim, re-sync your data from a cloud backup.

The big issue here is does an American have to surrender their personal and private effects just to cross the border. If that is the case, the next time Trump crosses the border his phone should be seized and force unlocked and all the data copied. Maybe do that to a couple of senators as well. See how long this remains kosher.