Can it be illegal to have/use a "wipe data" login on your device?

Question

Suppose I have a computer and I set up two logins that are identical other than one sanitises my data SSD upon logging on. This would cause any information I have on said drive to be inaccessible to anyone. Have I committed any crime? Assume the data itself is legal, and is not evidence of a crime I have commited. An important use case of such a tool would be reporters who may have evidence of crimes they are investigating. If that changes the situation that should be mentioned in the answer.

Suppose someone verbally requests the login credentials of the computer, and I provide the sanitising one which they proceed to use. Have I committed any crime?

Any jurisdiction would be relevant, as would any values for the "someone" above (such as employer, police officer, border agent). Cases where such a question would be particularly relevant seem to occur at borders in particular, with examples in the USA, Canada and most recently in the UK. So I can be specific about what I have done I have used the example of a general purpose computer, but I assume the same thing would apply to commercially available tools.

Answer 1

canada

If this is done with the specific intention of obstructing justice (see R. c. Charbonneau, 1992 CanLII 2979 (QCCA)), then this is an offence contrary to s. 139(2) of the Criminal Code. The offence is not dependent on the deleted evidence being evidence that would have been used against the deleter.

Every person who intentionally attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of [an offence].

A couple of examples:

• In R. c. Renaud, 2019 CM 4021, the accused had asked someone to delete photographs and texts off of their smart phone. He was found not guilty on this charge because the mens rea was not proved.
• In R. v. Subia, 2022 ONSC 1693, the accused admitted that he used specialized software in an attempt to delete traces of evidence (images) from his phone. He was found guilty of attempted obstruction of justice.

Answer 2

Using it may be a crime

Having it is fine

australia

There is a similar crime in all jurisdictions which in new-south-wales is called Tampering etc with evidence under s317 of the Crimes Act 1900.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You suppressed, concealed, destroyed, altered or falsified information knowing it is or may be required as evidence in a judicial proceeding, or you fabricated false evidence (other than by perjury), or you knowingly made use of false evidence, and

2. You intended by doing so to mislead any judicial tribunal in judicial proceedings.

A ‘judicial proceeding’ is any proceeding in or before a judicial tribunal in which evidence may be taken on oath.

Evidence of a crime (even if not your crime) “is or may be required as evidence in a judicial proceeding” even if no such proceeding has commenced. If you know its there and your intention is to destroy this evidence to prevent it being used in the (hypothetical) judicial proceeding, then you have committed the crime.

Answer 3

Yes using it can be illegal depending on the circumstances.

In numerous (if not all) jurisdictions there are offences like the following:

• tampering with, destroying, mutilating, altering or concealing evidence; and/or
• obstructing justice, perverting the course of justice or defeating the ends of justice (more broad); and/or
• contempt of court (even more broad).

Some jurisdictions compel the preservation or disclosure of records (e.g. for tax assessments or freedom of information law).

Some jurisdictions compel cooperation with agents of the state (e.g. when being questioned at a border).

england-and-wales

[At common law] the offence of Perverting the Course of Justice is committed when an accused:

• does an act or series of acts;
• which has or have a tendency to pervert; and
• which is or are intended to pervert;
• the course of public justice.

T v. R [2011] EWCA Crim 729:

In a criminal case, the course of justice includes the police investigation of a possible crime. An act that makes that investigation more difficult, or which may mislead the police in their investigation, may tend to pervert the course of justice.

The circumstances might be such that there is a more appropriate or specific offence (that would be preferred to a broader offence). For example, in England and Wales there is the offence of altering etc. records with intent to prevent disclosure, s77 Freedom of Information Act 2000.

In some circumstances using it is not illegal, e.g. if someone steals your device and demands you tell them your username and password.

Answer 4

As soon as you know that the information on your device will be or could be requested in a civil court, wiping it is not a crime, but the judge in the case will assume that the wiped data would have hurt your case and base his decision on that. If I asked you to produce some evidence because I think it will support my case, and you wiped it, the judge will assume that the evidence was there in the wiped data, and that it supported my case.

Now your problem is that even if the data you wiped was private and of no relevance to the court case, the judge doesn't and cannot know that, so in this situation wiping your completely irrelevant data is a huge mistake.