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If a Customs and Border Protection agent demanded that I give him my phone while I (a US citizen) was re-entering the US, would it be legal for me to activate some kind of "panic button" that factory-reset and/or instantly bricked the phone before giving it to him?

What about physically destroying the phone by breaking it into pieces after removing the battery to avoid a fire hazard, and handing him the pieces?

phoog
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Someone
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    If you have never heard of Destruction of Evidence, then read this: What Is Destruction of Evidence? (with pictures) – Mark Johnson Jul 29 '22 at 03:39
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    @MarkJohnson is it still illegal if there is no incriminating evidence on the device? (of course it doesn't make sense to do it in that case, unless it's as a form of protest against being required to hand over the device) – Someone Jul 29 '22 at 04:01
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    If it is punishable, it is the action taken that is punishable. Depending on the jurisdiction, destruction of evidence to protect oneself may not be punishable. (In German law it is not punishable §258 - Obstruction of prosecution or punishment). For the US I cannot say. – Mark Johnson Jul 29 '22 at 05:24
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    @Someone if you wipe your phone, how would you prove there was nothing illegal on it before? – BruceWayne Jul 29 '22 at 16:53
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    @BruceWayne isn't the burden of proof on the prosecutors to prove there was something illegal? Or does the act of erasing the phone prove beyond reasonable doubt that there was? – Someone Jul 29 '22 at 16:54
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    @Someone read the links provided above and below. Typically the courts assume you were acting in bad faith if you delete evidence, otherwise why are you deleting it? I'm sure it's especially true if you delete evidence immediately after being asked for said evidence. – BruceWayne Jul 29 '22 at 16:56
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    The Border Patrol agent would have to be investigating a specific crime and have reasonable and articulable suspicion that you committed that crime, or your phone isn't evidence in any proceeding. – tbrookside Jul 30 '22 at 01:44
  • A widely publicized celebrity libel case has just concluded in England. During the trial it was revealed the that some of the defendant's WhatsApp messages had been manually deleted, her IT Expert "lost" the password to the WhatsApp backup and her agent "accidentally" dropped her phone into the North Sea. The plaintiff's lawyers invoked a legal precedent from 1722 to argue that, in the absence of evidence, the judge should assume the worst. – Laconic Droid Jul 30 '22 at 14:46
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    You should separately query some tech expert about whether "breaking into pieces" actually makes data on a phone permanently unretrievable. – user6726 Jul 30 '22 at 15:53
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    @user6726 it probably wouldn't, but I was thinking of someone who doesn't have anything to hide but is protesting being required to hand over their phone. Breaking it into pieces would be very frustrating for the person who tried to recover the information. – Someone Jul 30 '22 at 15:57
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    @BruceWayne In the UK they can't prove this if they can't access your phone either, but you'll get an extra ten years. I imagine you will also get an extra ten years if your phone is empty even if they cannot prove you erased it. Don't cross borders with encrypted phones, and don't travel with secrets on your phone. – mckenzm Jul 30 '22 at 22:39
  • @BruceWayne can you cite a source in support of the proposition that courts can assume the existence of incriminating evidence under the given fact pattern? – phoog Jul 31 '22 at 16:55

2 Answers2

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This is going to depend on what you think or know is on the phone, why you want to keep it undisclosed, and why the officer says s/he wants it. If one knows or has good reason to think that there is evidence of a crime on the phone, then destroying or hiding that evidence may be criminal.

If one gets a court order, such as a warrant or subpoena, to turn over evidence, destroying the evidence or otherwise failing to comply may well be criminal contempt of court, or another criminal offense.

In most circumstances an officer must have probable cause, and usually a warrant, to conduct a lawful search. But border searches are different.

That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration. United States v. Ramsey, 431 U.S. 606, 616 (1977) (sustaining search of incoming mail). See also Illinois v. Andreas, 463 U.S. 765 (1983) (opening by customs inspector of locked container shipped from abroad).

The Congressional Research Service wrote: in the March 2021 report "Searches and Seizures at the Border and the Fourth Amendment" (pdf):

The Supreme Court has recognized that searches at the border are “qualitatively different” from those occurring in the interior of the United States, because persons entering the country have less robust expectations of privacy, given the federal government’s broad power to safeguard the nation by examining persons seeking to enter its territory. While law enforcement searches and seizures within the interior of the United States typically require a judicial warrant supported by probable cause, federal officers may conduct routine inspections and searches of persons attempting to cross the international border without a warrant or any particularized suspicion of unlawful activity. But a border search that extends beyond a routine search and inspection may require at least reasonable suspicion.

...

Recent years have seen legal challenges to border searches of electronic devices such as cell phones and computers, which often contain more personal and sensitive information than other items frequently searched at the border, such as a wallet or briefcase. The Supreme Court has not yet addressed this issue. Lower courts have generally held that government officers may conduct relatively limited, manual searches of such devices without a warrant or any particularized suspicion. The courts, however, are split over whether more intrusive, forensic searches require at least reasonable suspicion.

...

Federal statutes and implementing regulations confer designated law enforcement officers with broad authority to conduct searches and seizures at the border and surrounding areas without a warrant. These searches commonly occur at designated ports of entry along the border, such as border crossing points.[1] But searches may also occur in other places along or near the border.[2] To enforce U.S. customs laws, federal law enforcement officers may inspect and search individuals, merchandise, vehicles, and vessels arriving at the border, as well as further into the interior of the United States and within U.S. waters.

Under 19 U.S.C. § 1496, a customs officer may examine “the baggage of any person arriving in the United States in order to ascertain what articles are contained therein” and whether those items are subject to taxes or otherwise prohibited. Similarly, 19 U.S.C. §1467 allows customs officers to inspect and search the persons, baggage, and merchandise arriving by vessel from a foreign port (including U.S. territories).

If there is nothing that could be evidence on a phone, erasing it should not be criminal destruction of evidence, but this will be hard to prove after the fact, and border officials have authority to insist on a search with no warrant or particular suspicion.

Notes

[1]: See United States v. Cotterman, 709 F.3d 952, 961–62 (9th Cir. 2013) (describing a “border search” as one that occurs at ports of entry where there is an actual or attempted border crossing);see also U.S. CUSTOMS AND BORDER PROTECTION, Border Security: At Ports of Entry (last modified Apr. 2, 2018), https://www.cbp.gov/bordersecurity/ports-entry (describing U.S. Customs and Border Protection’s functions at ports of entry).

[2]: See United States v. Villamonte-Marquez, 462 U.S. 579, 593 (1983) (recognizing the government’s interest in patrolling inland or coastal waters “where the need to deter or apprehend smugglers is great”); Almeida-Sanchez v. United States, 413 U.S. 266, 268 (1973) (noting that the Border Patrol conducts inland surveillance activities “all in the asserted interest of detecting the illegal importation of aliens.”); See also U.S. Customs & Border Prot., "Border Security: Along U.S. Borders" (Jan. 17, 2018), https://www.cbp.gov/border-security/along-us-borders (describing the Border Patrol’s responsibilities along the border

Mark Johnson
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David Siegel
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    Thank you! So this may or may not be illegal, depending on the circumstances, but it's always a bad idea? (I assumed the "bad idea" part already.) – Someone Jul 29 '22 at 05:25
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    @Someone it's always a bad idea, especially since in a civil case they can draw adverse inference (assume there was whatever they alleged on the phone) if instead of handing it over you destroy or do not produce the evidence. – Trish Jul 29 '22 at 13:00
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    "it should not be criminal destruction of evidence, but this will be hard to prove after the fact" -- Fortunately, criminal destruction of evidence, like any other crime, is tried to a "beyond a reasonable doubt" standard, so the burden of proof is not on you, but on the prosecution. It would be different if we were talking about spoliation, which is a contempt or adverse inference charge, but you can't commit spoliation unless you have been reasonably put on notice to preserve records. – A. R. Jul 29 '22 at 13:32
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    @Someone better idea: Leave your sensitive-information ridden phone back home, and take a cheap device you won't mind losing too much. – Mindwin Remember Monica Jul 29 '22 at 20:11
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    I think the real issue is that Border Agents have wide latitude to just not let you in if they so choose. They can't keep a citizen out indefinitely, but it won't be a fun process. People get hauled to jail all the time for "contempt of cop;" it would be unwise to test Border Patrol. – Tiger Guy Jul 29 '22 at 20:14
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    Would you be required to unlock the phone if it is secured? – RetiredATC Jul 29 '22 at 20:28
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    @Mindwin if I ever travel outside the country, that's what I will do; I was just curious if this would be legal. – Someone Jul 29 '22 at 22:54
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As the other commenters established, your criminal liability depends on whether the contents of the phone are, or may be deemed to be 'evidence'.

But the border guard is not (usually) acting in pursuance of any investigation or court proceedings. He is exercising a preventative power.

This sucks for everyone who gets stopped under no cause, but the flip side is that your phone contents are not evidence, should you spontaneously decide to delete them.

Enron deletes records as part of general data protection -> legal.

Enron deletes records because they know they are being investigated -> illegal.

(This is a simplistic explanation since there are large caveats, for example, if you had something on the phone that you knew for sure would trigger an investigation were he to find it - then that would arguably be evidence, just as if you disposed of the contraband in your trunk only because you saw the police roadblock up ahead; alternatively if you were committing some kind of crime by entering, eg visa fraud, this could be said to be an investigation that the border guard is already undertaking; or if you were just personally under investigation and found out only because the border guard stopped you. However, in most of these cases, it would be likely to be plausible to lie since the evidence to prove your intent would be deleted!)

heywebrokeyalinuxagain
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