> It's immensely different. Leaps and bounds different. Why? [O]nce you have been told to unlock the device, you're already in a legally binding process.
From a factual point of view, rather than the narrow legal one offered, it is not materially different to delete a phone in anticipation of a future search. In most cases, outside the customs context, it's just harder for the government to prove obstruction of justice.
What's different here is that the government only had a right to search the phone in relation to the border, and the government used that right not just to search for contraband like the law anticipates. If someone dumped their contraband and made it disappear before actually crossing a border, would that be an evidence-related crime? What if they thought about a contraband conspiracy, and then intentionally forgot? What if the customs office presented a form to all travelers, well in advance of formal screening, that they must preserve their contraband henceforth? And then they decided not to smuggle it? Interesting questions legally, but factually, considering criminal charges in those scenarios over the evidentiary situation would be pretty silly.
So then, when you delete purportedly contraband data at the border, have you really just done a public service of removing one more potentially contraband item from border inspection? Or is it that once any of us create data in the vicinity of a border or in a context where we might approach a border in the future with the access device or storage medium, do we all have a duty to preserve it for inspection until the customs authorities get around to inspecting us? Or is it just that this series of hypotheticals illustrate that we have here an epic mash-up of misinterpretation here?
One can’t help but wonder if a motivated DOJ could twist a “destruction of the evidence” charge out of someone dumping a kilo of cocaine just before traveling to the US.
Maybe just don't enter a duress pin, causing the phone to blatantly wipe, and rrboot, and enter a setup screen, right after a customs officer confiscates your potential "contraband", and demands the pin?
I mean really, this act is exceptionally blunt, clear, and overt. All this hand waving won't change things.
From a factual point of view, rather than the narrow legal one offered, it is not materially different to delete a phone in anticipation of a future search. In most cases, outside the customs context, it's just harder for the government to prove obstruction of justice.
What's different here is that the government only had a right to search the phone in relation to the border, and the government used that right not just to search for contraband like the law anticipates. If someone dumped their contraband and made it disappear before actually crossing a border, would that be an evidence-related crime? What if they thought about a contraband conspiracy, and then intentionally forgot? What if the customs office presented a form to all travelers, well in advance of formal screening, that they must preserve their contraband henceforth? And then they decided not to smuggle it? Interesting questions legally, but factually, considering criminal charges in those scenarios over the evidentiary situation would be pretty silly.
So then, when you delete purportedly contraband data at the border, have you really just done a public service of removing one more potentially contraband item from border inspection? Or is it that once any of us create data in the vicinity of a border or in a context where we might approach a border in the future with the access device or storage medium, do we all have a duty to preserve it for inspection until the customs authorities get around to inspecting us? Or is it just that this series of hypotheticals illustrate that we have here an epic mash-up of misinterpretation here?