I’ve previously discussed the difficult situation that you can face when you cross the border into the United States with an iPhone or other electronic device, especially if you are an attorney. A recent news item in the New York Times has me thinking about this again.
Adeel Hassan of the New York Times reports that when a U.S. citizen was asked by customs officers upon entering the country to hand over his Android smartphone and its password, he gave them a special “password” that wasn’t a password at all. When typed, that word activated software to erase his smartphone. This isn’t something that the Android (or iPhone) can normally do, but he installed an open-source operating system on his smartphone to add this feature.
The government responded by prosecuting him under 18 U.S.C. § 2232, a statute that—among other things—makes it a felony to destroy evidence. Section (a) of the statute is titled “Destruction or Removal of Property To Prevent Seizure.” It provides:
Whoever, before, during, or after any search for or seizure of property by any person authorized to make such search or seizure, knowingly destroys, damages, wastes, disposes of, transfers, or otherwise takes any action, or knowingly attempts to destroy, damage, waste, dispose of, transfer, or otherwise take any action, for the purpose of preventing or impairing the Government’s lawful authority to take such property into its custody or control or to continue holding such property under its lawful custody and control, shall be fined under this title or imprisoned not more than 5 years, or both.
As I read the statute, I find myself thinking about 1Password’s Travel Mode feature on the iPhone, a feature that has been available since 2017. This is a feature that you enable using the 1Password website (not your iPhone app), and here is how 1Password describes the feature: “It enables you to temporarily remove vaults that contain sensitive information. The vaults you choose aren’t just hidden – they’re entirely removed from your devices, including the 1Password browser extension. If a police officer or customs agent asks you to unlock your phone, they will only see the vaults you’ve marked as safe to travel. When you turn off Travel Mode, the removed vaults will automatically reappear in the 1Password app the next time you connect to the internet.”
I can imagine an argument that this is a feature that “destroys, damages, wastes, disposes of, transfers, or otherwise takes any action” on a vault on an iPhone, and thus if the feature is utilized because a person intends to “prevent[] or impair[] the Government’s lawful authority” to look at the contents of the 1Password vault, using this feature could expose someone to a fine or imprisonment of up to five years, or both, under 18 U.S.C. § 2232.
Of course, I can also see arguments to the contrary. One might argue that the data hasn’t been destroyed; it still exists on the 1Password website. Thus, one might argue that turning on Travel Mode is like deciding to leave something at home rather than taking it while traveling. A person might also defend the use of Travel Mode by explaining that they used it for a different purpose, such as to prevent a thief from stealing the iPhone at an airport or to prevent access by a government official from another country. Moreover, one might argue that the statute does not apply in a particular circumstance because there was no lawful authority to look at the contents. According to the New York Times article, that is an argument that this person asserted; he argued that “he was targeted because of his political activism against Atlanta’s plan to build a police and fire training center within a 1,000-acre stretch of urban woodland.” And as Gaby Del Valle of The Verge notes, courts are split on whether customs agents can conduct searches without a warrant. Additionally, an attorney might also argue that there was no lawful authority because a vault contains confidential attorney-client communications or attorney work product. I suspect that there are other possible defenses.
Do I think that the use of 1Password’s Travel Mode always implicates this statute? Absolutely not. But can I imagine an argument being made that it does apply in certain circumstances? I can, especially in the current political climate. I understand why some people might prefer to just use a burner phone when traveling internationally, one that doesn’t contain private data at all, so there is no need for a Travel Mode feature.
When you believe that you have a right to privacy and the government disagrees, things can become complicated.
