Comment Re: This isn't the EU. He's going to win. (Score 1) 311
The lack of concrete prior suspicion makes a massive difference under EU law.
In the U.S. case involving Samuel Tunick, federal prosecutors relied on the Border Search Exception under the U.S. Fourth Amendment. This doctrine gives U.S. customs agents broad authority to conduct warrantless searches of devices at entry ports without needing reasonable suspicion. The charge about destroying property to prevent a lawful seizure (18 U.S.C. Â 2232(a)) hinges on the governmentâ(TM)s claim that the border search itself was legally valid from the start, even without prior suspicion.
In contrast, if an EU citizen were in the same position (entering an EU country with no individualized suspicion), the outcome would likely be completely different.
1. Border Authorities Lack Initial Authority
Under European Union and national legal frameworks (such as the Schengen Borders Code and EU Charter of Fundamental Rights):
* EU Citizens Have Right of Entry: An EU citizen returning to their home state or entering another Schengen state cannot be denied entry for refusing to cooperate with an arbitrary device search.
* No Blanket Digital Search Power: Unlike the U.S. CBP, border officers in EU member states do not have statutory authority to demand passcodes during routine, random, or suspicionless border control.
* The Threshold for a Legal Demand: For police or customs to legally compel access to a device, they generally must escalate the situation to a formal criminal investigation, which requires articulable, reasonable suspicion or a judicial warrant depending on national law.
Without concrete suspicion, demanding the password in the first place would likely be deemed an unlawful order violating Article 8 of the ECHR (Right to Respect for Private and Family Life).
2. Can You Destroy "Evidence" If No Crime Is Suspicion-Linked?
In the U.S. case, prosecutors argue that any property border agents attempt to seize under their routine authority counts as property subject to seizure.
In EU legal systems, criminal obstruction and destruction of evidence charges (e.g., under French, German, or Swedish criminal codes) strictly depend on the lawfulness of the initial police action:
* Unlawful Demand = No Obstruction: If an officer demands your passcode without statutory grounds or suspicion, that demand is unlawful. Wiping a device in response to an unlawful demand rarely sustains an obstruction charge under European criminal law, as there was no lawful seizure in progress.
* "Evidence" Requires an Underlying Crime: In most Continental civil law systems, you cannot be convicted of "destroying evidence" unless the state proves that actual evidence of a specific, defined criminal offense was being destroyed during a valid judicial inquiry. If agents were merely conducting a random "fishing expedition" with zero suspicion, the wiped data cannot automatically be presumed to be criminal evidence.
3. European Court of Human Rights (ECtHR) Strict Protections
European courts place a much higher constitutional burden on privacy and self-incrimination than U.S. courts:
* Proportionality Principle: Under Article 8 of the ECHR, any interference with digital privacy by state authorities must be necessary in a democratic society and proportionate. Digging through a citizen's entire digital life at a border without individual suspicion fails the proportionality test.
* Right Against Self-Incrimination (Article 6 ECHR): While national laws (like in France) penalize refusing to give passcodes during a formal criminal investigation, European case law consistently protects citizens from being forced to actively assist law enforcement when the state has zero underlying probable cause.
The Bottom Line: If border agents in the EU try to search your phone at random without concrete suspicion, you are under no legal obligation to provide a password. If you triggered a duress wipe under those exact circumstances, an EU court would almost certainly rule that the border agents acted outside their authority, invalidating any attempt to charge you with obstruction or evidence destruction.
