It may be fun to fantasize about these things some times, but there is no technical solution to tyranny. Laws are not like code, intent matters. Ultimately if the intent is that the government wants to see your private data, hiding it in any way will be charged - it doesn't matter if you jump through hoops to avoid this specific instance.
This is a half-truth. In a full banana republic, technical compliance with the law will not prevent consequences for failing to do what the authorities want. In a jurisdiction with perfect rule of law, it always will. The USA is somewhere in between.
One of the laws that's enforced pretty well in the USA is the protection against unreasonable search. Most of the time, a search requires showing a judge evidence that the search is more likely than not to reveal evidence of a crime. Exceptions are narrow and specific; the government's options to punish someone who refuses to decrypt data at the border are limited to brief detention and seizure of the medium.
Not yet tested is the idea that erasing data on the spot satisfies the purpose of the border search exception, which is to prevent importation of things that are illegal to import. This case might address that question.
Unreasonable search is always under attack though. There are many instances today of cops forcibly entering a home claiming nothing more than a welfare check, or "we received a call."
Edit to add that its also more difficult than it should be to protect and exercise the right against unreasonable search. If a cop knocks on your door its a consent-based interaction. You can simply not respond, but if you do happen to crack the door they can and will look in for any signs to claim as probable cause. Further there are cases where a person stepped out to talk and when they turned around and walked inside the cop slid right in behind them and later claimed in court the open door was implied consent. (I don't have a link to the court docs unfortunately.)
>There are many instances today of cops forcibly entering a home claiming nothing more than a welfare check, or "we received a call."
Sure, but there are also many instances today of evidence getting thrown out in court due to cops not getting a warranty and poisoning the tree and all its fruit. Rights don't just enforce themselves, there are and have to be a number of layers to the onion to help reduce the violation numbers at each stage.
There's also plenty of examples of even if the evidence is thrown out, there's damage to life or property that is never made whole.
I'm personally less concerned with those cases and more concerned with evidence that ultimately is thrown out allowed them to build a case that otherwise would have gone nowhere.
Say they search a vehicle without consent or probable cause and find weed. Then they further investigate the person and find additional evidence they otherwise never would have found. That weed find may get thrown out but it doesn't always nullify the rest of the case, and if the DA is clever they simply wouldn't submit the weed as evidence at all.
Maybe a better example as a half decent defense attorney, or the judge, could get subsequent evidence thrown out there.
A cop pulls you over for a brake light. They decide to go fishing, asking where you're coming from or where you're going, looking for any inconsistency to pull on. Maybe they decide they smell something on your breath.
A well informed person would refuse to ask questions and help ensure the traffic stop can move forward with the ticket, the cop isn't allowed to hold you for longer than required for the initial offense.
Most people when asked questions, though, will answer. Most people asked to take a field sobriety test will oblige. None of that is required and all requires consent - the cop knows that and knows that few people will stand up for that.
Such fishing expeditions should be illegal and anything found should be considered inadmissible due to unreasonable search. When the professional trained in law knows that they can game the average person it should be unreasonable practice.
That's not really relevant this was about going to jail after police break the constitution. If we're talking about bad things cops do there's civil asset forfeiture.
Rights needing to occasionally be upheld by the courts wasn't my complaint though. Its cases where rights we're clearly infringed, at least I'd expect most citizens would agree, and courts uphold it because a person didn't say a particular phrase, for example, or because a "reasonable" cop would have seen a cracked door as implied consent.
>There are many instances today of cops forcibly entering a home claiming nothing more than a welfare check, or "we received a call."
And there are also many instances of the city being sued, those cops being sued, losing qualified immunity, losing their jobs, etc, because we do still have recourse when cops do the wrong thing.
If your rights were violated, you stand to get a big payout, and get the cops fired that violated your rights. We aren't powerless, yet.
> And there are also many instances of [...] those cops being sued, losing qualified immunity, losing their jobs
Not really, the data points the other way. Cops basically never have to actually pay for their wrongdoings. Over 99.98% of money successfully recovered from cases against police is paid out by the cities, not cops personally [1]. A considerable number of cops that are fired are also eventually rehired by the same department [2] or a different one [3]. So I don't think it's that clear that you "have recourse when cops do the wrong thing".
[1] https://nyulawreview.org/wp-content/uploads/2018/08/NYULawRe...
[2] https://scholarship.law.vanderbilt.edu/vlr/vol74/iss4/4/
[3] https://yalelawjournal.org/pdf/GrunwaldRappaportArticle_s6br...
It isn't foolproof though, and police and DAs have incentive to both work together and to look the other way.
Note I also didn't say the problem is rampant. I take issue that its possible at all, and that it isn't a 100% success rate of holding police to account, especially when most are required to wear body cameras today.
Can you link to some of these cases of cops losing qualified immunity? It's an area in interested in but I understand that to be a vanishingly rare outcome - like only in very egregious cases, not just for run of the mill rights violations.
In case this isn't a bot and simply someone unfamiliar with the internet search, here is a snippet from the Google AI results when searching for the phrase, "list of US court cases where police lost qualified immunity."
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A federal court denies qualified immunity when an officer’s conduct violates a clearly established constitutional right or when material facts remain heavily disputed for a jury. While appellate and district courts routinely evaluate these claims, absolute lists contain thousands of entries because denials typically happen at the lower or circuit court levels rather than as sweeping national precedent.[0]
Notable Federal and Supreme Court Cases Denying Immunity
Taylor v. Riojas (2020): The U.S. Supreme Court summarily reversed a lower court and denied qualified immunity to correctional officers who housed an inmate in shockingly filthy, human-waste-packed cells for days, ruling that the extreme conditions-violating the Eighth Amendment-needed no prior identical precedent.[1]
King v. Brownback (Sixth Circuit): The 6th U.S. Circuit Court of Appeals denied qualified immunity to members of a joint law enforcement task force after they aggressively tackled and beat an innocent man (James King) outside a convenience store when they mistook him for a suspect.[2]
Schroeder v. City of Des Moines (2022): The Eighth Circuit Court of Appeals ruled that three police officers were not entitled to qualified immunity after conducting an unlawful, suspicionless car stop and subsequent arrest based on an unverified temporary license plate.[3]
Glover v. City of Jackson (2024): A federal district court famously rejected a detective’s qualified immunity defense in a major civil rights action involving fabricated evidence and malicious prosecution, highlighting systemic flaws in the doctrine itself.[4]
[0] - https://ij.org/press-release/massive-new-study-reveals-that-...
[1] - https://leb.fbi.gov/articles/featured-articles/qualified-imm...
[2] - https://ij.org/case/king-v-brownback/
[3] - https://iowaappeals.com/uncategorized/three-des-moines-polic...
[4] - https://eji.org/news/federal-court-denies-qualified-immunity...
Or your family gets the payout because the cops killed you.
Border search exception lowers the requirements for judicial oversight.
"In United States criminal law, the border search exception is a doctrine that allows searches and seizures at international borders and their functional equivalent without a warrant or probable cause. Generally speaking, searches within 100 miles (160 km) of the border are more permissible without a warrant than those conducted elsewhere in the United States."
https://en.wikipedia.org/wiki/Border_search_exception
213 milion people live in this zone.
https://www.aclu.org/know-your-rights/border-zone
It's really crazy. If 2/3 of us don't have privacy rights then what are we even doing.
we're far closer to one side of that spectrum than the other. consider the retroactively legalized mass wiretapping, room 641A, NIST compromises, PRISM, 14 Eyes, the other Snowden revelations, etc
then consider this paired with the implementation of mass data sharing between the alphabet agencies, surveillance data sharing from private companies like Amazon Ring, Flock, Clearview, etc. and NSPM-7 ordering agencies to create JTTFs to target organizations like BLM
then consider the unmitigated use of force by federal law enforcement agencies like ICE
I think if this were 1995 your point might be fair but those days are unfortunately long gone
shudder. but, where else could we go? switzerland? my point being we need to try to get 1995 back. id gladly trade my iphone for a car phone.
Agree with the thrust of your comment, but I had to comment on this:
> In a full banana republic, technical compliance with the law will not prevent consequences for failing to do what the authorities want. In a jurisdiction with perfect rule of law, it always will.
I think you may be misunderstanding that many laws, even in fair, just societies, are intentionally designed to be flexible. The real world is so variable and messy that in many cases it isn't feasible for a law to be written such it can be unambiguously determined whether or not a specific action violated the law. Laws often rely on humans using context to judge whether something violates the spirit of a law, and in a just society, this is a good thing.
My point is that I don't believe the idea of "perfect rule of law" is sensible. Law is always necessarily a bit fuzzy and nebulous.
Theres a reason why the motto of banana republic leaders is: "For my friends, everything. For my enemies, the law"
I think I mostly disagree with this. "Technical compliance" is not and should not be the thing that a legal system is designed to incentivize, and should not be the criterion for "perfect rule of law."
I would disagree with you, because "technical compliance" is compliance with the letter of the law. You have complied with every explicit requirement of the law. If the law is insufficient then legislature is free to add a clause that bans whatever aspect you technically comply with that they don't like.
The alternative is complying with the spirit of the law, which is an eternal guessing game. Who knows whether it's legal or not, we have to wait for the Supreme Court to decide what Congress _actually_ meant. It implies that the law means something beyond what anybody bothered to actually write down, and nobody has any idea what that is until the Judiciary interprets it into "actual law".
What should be the thing that it is designed to incentivize, then? Compliance with the spirit of the law?
Having good technical tools won't fix a failing society, but they're still nice to have and they make state surveillance of its citizens just a little bit harder. I mean, where would we be without strong cryptography?
these are abuses of existing powers, rather than acting with reckless abandon
the government would have no ability to access the data if he didnt bring it on his person here.
hell, he could have just continued to not given his password and left his phone with them, too.
This is false. If you can image and wipe your phone on the plane before landing, and write those random bytes to a usb stick, the usb stick will appear blank, because encrypted data is noise. You land with a factory blank phone. You clear customs and get where you are going and restore your phone.
Substitute cloud storage for a USB stick if you do it at your departure hotel.
There are absolutely technical solutions to the implementations of tyranny. Otherwise we wouldn’t bother with encryption. Violence can’t solve math problems.
How do you solve it when they beat you for having a phone that doesn't look like they want?
Like whatever arbitrary thing they decide it should look like that day.
You can’t solve that in any case, but that has nothing to do with tech.
Normally I agree, but making the implementation initially ineffective is a good way to complicate more far reaching measures.
Americans aren't standing up against this, but they might have considerably more interest if the government was instead trying to ban encrypting data in cloud storage for everyone.
There's also just the fact it's ridiculous I can't have a spare phone ready to go in a few minutes and get it back exactly as I left it.
Yes, trying to solve a regulation or legal issue by some technical workaround will never work, you have to fight it at the same level, legally, or system-wise, otherwise, you will be like the person who tries to wash the stairs from the bottom all the way up, it rarely works, you gotta go up to down, collectively go against the matter rather than individually duct taping it for your own specific needs. In that example, it won’t be far fetched the same ones who made it illegal to wipe your phone to make illegal to install xyz OS or using abc protocol, in fact, that’s exactly what they are trying to do under the disguise of “protect the kids” and going after encryption or similar privacy related issues.
They would not be so vehemently against it if it did not work. There is a reason E2EE, duress passwords and similar technologies are under such intense assault these days.
Destruction of evidence as a crime goes back a long, long way. There's no precedent for making it illegal to install some OS or protocol the feds don't like. I don't particularly like what's being done to this guy, but what he did was pretty stupid. You can't be obligated to incriminate yourself but you aren't allowed to destroy evidence.