US government targets Cop City protester over phone operating system
(www.theguardian.com)
PrivacyConcern over US effort to prosecute Sam Tunick, accused by authorities of wiping his phone using GrapheneOS
The headline is misleading. They're not prosecuting him for using GrapheneOS; they're prosecuting him for using a duress code to erase data when they wanted to search it.
That's also bad, but it's a different set of facts. If he had simply refused to provide access, they would have seized his phone, but wouldn't have this particular creative charge to prosecute.
using a duress code to erase data
Just for my information, is that possible on androids without grapheneOS?
Free publicity for GrapheneOS.
federal authorities had put him on a terrorism watchlist because of his alleged association with the movement against Cop City.
Murica, land of the free...
Murica, land of the free...
Home of the.....
....largest prison population on Earth, predominantly made up of African Americans and Hispanics who carry out labour essentially for free. (< Thats what they mean by the "free" part.)
Tunick’s federal public defenders,
TBH I hope he can get more than public defenders. They work hard but they are often over worked and under resourced. Plus not being specialists in this. Maybe the EFF will offer specialist help. EFF is already aware of his case. Hence why anyone who is able to, should donate to the EFF. So they can employ high powered lawyers.
Additionally, the agents produced no warrant and did not read Tunick his rights.
NAL, but I think the gov can't have it both ways. IF they did not produce a warrant or Mirandize him, THEN they cannot come at him for wiping his own phone. The gov might have a case if they had a warrant and he knowingly wiped it. But that's not what allegedly happened here. No warrant = still 100% his device to do what he wants.
Aside from his case, courts in the US are all over the place, on whether you can be compelled to unlock a device if there IS a warrant. More often than not, they have ruled you CAN'T be compelled to produce a passcode from your memory. But in some cases, they have ruled the opposite. It's super chaotic, and prob needs a SCOTUS ruling.
IANAL too, but 4th amendment protections are different at borders, and this was at an international airport. The duress code is an interesting wrinkle, like what if he told them the code and the officers entered it into the phone, did the officer technically erase evidence then? I think Apple has some similar setting to wipe the iPhone after 10 failed attempts or something like that, so surprised this hasn't come up before to setup precedence
Yah, lots of interesting things here. I agree, seems like it's long past the point where this needs to get sorted out.
I think in legal cases with a warrant and so on, the police make a forensic image of the device, and will not just try to unlock it like happend here. They entered the code here without a safe image, b/c there was no court case, no warrant, just the border search.
Here's what the EFF has to say about border searches. They agree with us, it's past time to get a solid legal framework. They talk about the 4A border search exception a little.
Mostly I've heard that they can take your device, but they can't stop a US citizen from entering the country, and they can't compel a pw from you. However, for most ppl, that's already a LOT of duress, b/c losing a phone with your whole life on it, is a huge blow.
It’s past time to get a solid legal framework.
Perhaps the suit over Max Blumenthal’s recent experience will set some precedence. ADC sues DHS Secretary Mullin over illegal CBP seizure of Max Blumenthal’s devices
Edit to add: Perhaps not: DHS has returned his devices, probably because they did’t want this to go to court, probably because they know their legal position is weak.
Interesting. Thanks for the link! I didn't hear about that one before.
Seizing a journalist’s phones provides the government access to private sources and years of protected newsgathering. Allowing political pressure to determine whose protected electronic devices the government may search would pose a profound threat to the free press and the Constitution.
Indeed.
this is going to play out like the others that have used encryption on their computers; with them in jail for years on end for contempt of court.
Wouldn't it be great to see contempt of court charges for the wealthy and powerful, instead of just a random citizen erasing his phone?
That might be accurate in some places, but it VERY misleading for the US in particular.
In the US, the courts are currently divided on whether encryption has 5A protection. But more cases than not, have ruled they DO enjoy 5A protection against self incrimination. For example, US v. John Doe, 2012. VA vs David Baust, 2014. SEC vs Bonan Huang, 2015. US vs Mitchell, 2017. There are lots of other individual cases, where courts ruled a defendant does NOT have to unlock an encrypted device. The warrant gives the gov the right to the device, but the defendant did not have to help them access it.
One prob with compelling a pw, is it's impossible to know if the suspect is refusing, or legit forgot. Esp when there is a long time interval. Ex, Voigt and Victor, it was 10 months before the gov requested the pw, and
A judge declined to hold Hencha Voigt in contempt of court after she gave incorrect pass codes to police investigating a 'sextortion' case.
There have been cases that went the other way, and a suspect was held in contempt for failing to produce a pw. Hence why it is a chaotic legal situation, until a higher court sorts it out. But your odds are pretty good, at the mo, in the USA.
It is likely, SCOTUS will eventually rule that just like a GPS track enjoys 5A protection, so does the device contents. Not certain, ofc! But that would align with recent court rulings, ex, Chatrie v. United States.
