Is it illegal to make your data self-destruct in the hands of the authority figure trying to snoop around on your phone, or are you within your rights to make that happen?
If you’re a fan of privacy in our age of creeping digital authoritarianism, there’s one famously effective way to pass through U.S. Customs at an airport without worrying about a device search: travel with a burner phone only. As border officials become increasingly preoccupied with what’s on our devices, only carrying devices with nothing interesting on them is kind of a no-brainer. But if your life situation or travel plans make that impossible, the privacy-centric Android variant Graphene OS has another purported solution: a duress password and PIN, which “will irreversibly wipe the device (along with any installed eSIMs) once entered anywhere where the device credentials are requested.”
Picture it. You uncomplainingly tell the authorities what your PIN and password are. They punch them in, expecting to be able to feast on juicy gossip, but instead the phone bricks itself and they get nada. It’s beautiful.
But an Atlanta-based activists named Sam Tunick allegedly used this feature as advertised, and it allegedly worked as advertised, and now he’s being prosecuted for destroying evidence. The single-count prosecution is pithy. Here’s the whole thing:
“On or about January 24, 2025, in the Northern District of Georgia, the defendant, SAMUEL TUNICK, before and during the search for and seizure of property by Customs and Border Patrol Tactical Terrorism Response Team Supervisory Officer L.C., a person authorized to make such search and seizure, did knowingly destroy, damage, waste, dispose of, and otherwise take any action to delete the digital contents of a Google Pixel cellular phone, for the purpose of preventing and impairing the Government’s lawful authority to take said property into its custody and control, in violation of Title 18, Untied [sic] States Code, Section 2232(a).”
Now, as Tunick’s federal criminal case unfolds, an important potential legal battle is coming into focus. The Guardian reported on the story earlier this week after a hearing on Monday. Tunick’s initial indictment was covered by 404 Media in December of last year. And an account of the story from last year on the crowdfunding site GiveSendGo also fleshes out apparent details.
Quite a bit may be at stake. According to the Guardian, two privacy experts, Christophe Boutry and Electronic Frontier Foundation technologist Bill Buddington, expressed concern about this case and said it has no known precedent. Boutry told the Guardian the prosecution “sends the message that [GrapheneOS] is criminal by default.” Atlanta Solidarity Fund member Marlon Kautz told the Guardian, “We all have a right to secure our private data against unconstitutional searches. And we should – especially in a time of rising authoritarianism.”
But Tunick, who is associated with the Defend the Atlanta Forest protest movement—also known by the slogan “Stop Cop City“—is fighting tooth and nail to prevent the technology in question from forming the basis of a prosecution at all. A filing from his attorneys seeks to have the Graphene OS-related evidence in his case tossed out under the “fruit of the poisonous tree doctrine.”
The filing argues that he was being questioned as part of a custodial interrogation, meaning he couldn’t leave, but that he had not been Mirandized, and wasn’t being granted access to a lawyer despite requesting one. Also, even though filings related to his prosecution reportedly make it clear that the authorities were interested in him because of his political activity, the new filing alleges that he was being questioned under a phony pretext: that the authorities were looking for child sexual abuse material on his devices. Relevant testimony to his interrogators, then—presumably him saying some unknown thing like “Yes, my phone is acting weird. That’s because I just used a cool piece of software to wipe its contents. Can I go now?”—was coerced testimony, and should be thrown out, his attorneys say.
The timeline and circumstances of Tunick’s case also add an unappealing, police state-y tint to the story. The initial encounter with Customs occurred in January of last year, when Tunick was returning from a vacation in the Dominican Republic. The version of Tunick’s story on his crowdfunding page at GiveSendGo claims that he was arrested more than ten months later after he was “pulled over while driving and asked to step out of the car to observe an issue with the tail light.” That account claims that when he got out, FBI and DHS officers cuffed and detained him.
Security consultant Runa Sandvik told TechCrunch, “I have not seen this before, though I’ve discussed the potential scenario with activists and journalists over the years,” adding, “I think this case serves as a reminder that authorities may argue you knowingly destroyed data, so it’s better to not have that data on you when you cross certain borders.”
So while it would be illuminating to find out whether this feature on Graphene OS is illegal to use, practically speaking, or if it simply protects our Constitutional rights, Tunick, who officially denies having used it, would clearly rather not be prosecuted at all.
Read the full article here
