American Who Wiped His Phone With 'Duress' Password During Border Search Gets Felony Charges (nytimes.com)
- Reference: 0185089540
- News link: https://yro.slashdot.org/story/26/08/21/202201/american-who-wiped-his-phone-with-duress-password-during-border-search-gets-felony-charges
- Source link: https://www.nytimes.com/2026/08/21/us/politics/samuel-tunick-deleted-phone-felony.html
> "Obstructing federal law enforcement is a serious matter that has serious repercussions," Theodore Hertzberg, the U.S. attorney for the Northern District of Georgia, said in a statement. "Individuals who destroy or attempt to destroy property, including data, to prevent lawful search and seizure should expect to face prosecution and punishment for their actions."
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> A spokeswoman for U.S. Customs and Border Protection said in a statement that the agency had the authority to search the electronic devices of anyone entering or leaving the United States, regardless of citizenship, to enforce laws addressing terrorism, child exploitation, drug- and human-smuggling, visa fraud and national security threats.
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> "The border search will only include an examination of information that is present on the device at the time it is presented for inspection," the spokeswoman said, adding that it searched the electronic devices of fewer than 0.01 percent of all arriving international travelers in the last fiscal year.
"Just the knowledge that the government is peering into your private life in this way, trying to dig up dirt on you, even though it's unsuccessful, is creepy," Tunick said, in response to a question about how the charges have affected him.
His message: "The government doesn't own our communications, our relationships, as hard as they might try to. We have to defend our fundamental right to privacy; otherwise we can't say that we really live in a democracy."
[1] https://www.nytimes.com/2026/08/21/us/politics/samuel-tunick-deleted-phone-felony.html
[2] https://yro.slashdot.org/story/26/07/24/215251/us-accuses-american-of-allegedly-wiping-his-phone-using-a-duress-password-during-border-search
[3] https://yro.slashdot.org/story/26/07/28/1652243/grapheneos-defends-data-wiping-function-that-blocked-us-border-search
Slippery Slope (Score:2, Insightful)
This is a huge slippery slope and a massive Orwellian nightmare. Unless the law can articulate what evidence they expect to find on the device, it should not be considered "evidence". What the orange man's minionsappear to be doing is a spear fishing expedition to try and find dirt on people without probable cause.
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The guy was crossing the US border. When you do that, agents can search your devices without a warrant.
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Customs agents do not need probable cause or a warrant to initiate a routine seizure and basic search of your electronic devices at a U.S. port of entry. Almost any seizure while under the border search exception is basically considered justified. So if you delete your phone, burn your wallet, tear up your love letter to your EX, flush your drugs, etc. The border agents can view that as "Destruction or removal of property to prevent seizure"
Don't like it? Write your legislature to reverse the long-held ruli
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> So if you delete your phone, burn your wallet, tear up your love letter to your EX, flush your drugs, etc. The border agents can view that as "Destruction or removal of property to prevent seizure"
Only if you do it in front of them. Do it before you're anywhere near the border and I think you're fine.
P.S. stay away from illegal drugs, whether you're crossing the border or not.
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The whole thing is bullshit, because for it to be evidence of a crime, there has to be an actual crime to investigate.
Where's the probable cause?
Where's the due process?
Why is he being charged with obstruction of justice, when there is no predicate crime to investigate? Evidence of fucking what?
Unless they can answer that, this goes the same way as the Subway sandwich assault guy, the olympian reflecting pool vandal, and the seashells prosecution of Director Comey.
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It doesn't matter whether the "evidence" on the guy's phone was incriminating or not. The border agents had the authority to examine the information on his phone without a warrant. He tricked the border agents into destroying that information before they could examine it, and that's the crime.
Things are different when you cross a border. Due process rights are reduced significantly. Agents don't need probable cause or a search warrant. They can just search.
And there doesn't need to be a predicate crime to b
The solution is clear. (Score:3)
Rather than destroy evidence, simply do not take your real phone out of the country. Take a burner phone. Wipe it on the way to the airport.
I would never hand a device that has access to my whole life to someone without a warrant and I wouldn't unlock it (no face ID, it's a password). So the I would take a burner phone with me while traveling internationally. Minimum tooling required for my travel.
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I'd like Android-in-docker. Run Android and have a perfectly usable phone. Normal PIN entry. Normal apps. Can make phone calls. Pretty limited text message log. And then start the docker container with your accounts, chat programs, etc. The key thing is I would want it to take over the messaging services while the container is running instead of having everything going to the outer dumb layer.
Not only is this good for agitators fighting government overreach. But it seems like a good way to have a work accou
"Solution" (Score:3)
Respectfully, that's a workaround, not a solution. A real solution to a dysfunctional government is inherently political.
When the laws and their interpretations allow for unchecked executive power to surveil, the outcome isn't surprising. The solution is to promote, vote for, and elect officials who believe in protecting rights and will nominate court officials with sane views on the 4th amendment and executive power.
Innocent until proven guilty? (Score:1)
So, he's charged with destroying evidence for a crime he may or may not have committed. Put in that light, maybe innocent until proven guilty doesn't apply here. But even calling it "evidence" sets up the bias. Destroying data for possible crime is a way to put it, but then that seems like minority report. The other point is that like, I'd argue a defense that it wasn't me 'protecting' or 'destroying' anything--it was preemption of possible viruses or what-have-you loaded onto the phone out of his pers
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> So, he's charged with destroying evidence for a crime he may or may not have committed.
You're confused. He tricked the border agents into destroying the information on his phone before they could examine it. That was the crime.
Ironically, if he had wiped the information himself before presenting at the border, I'm pretty sure he would have been fine.
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> But even calling it "evidence" sets up the bias. Destroying data for possible crime is a way to put it, but then that seems like minority report.
Destroying something law enforcement believes is evidence in that moment is literally Obstruction of Justice, and destroying evidence is literally a crime specifically for that reason. There really isn't much grey area here.
Wipe your devices BEFORE You travel. (Score:3)
Before I travel I back up my phone to a hidden encrypted VeraCrypt volume, then wipe it. I've done the same with my tablet, and ereader, and it's just the sensible thing to do, you can restore it at the destination. I don't have anything incriminating on my phone, but, the government has no right to any of that data, for any reason. The issue here, is that he intentionally destroyed the data when it as in the hands of a government agent, which you only do if there is some reason to destroy it. If you back up and wipe a device beforehand, that's just sensible data hygiene. If you wipe the device in the hands of law enforcement, or a government actor, what possible reason did you have for doing that? Even if you're entirely innocent, why did you do that, instead of securing the device before you left?
Should he be charged with anything, no, but, did he do something stupid? Yes!
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> Should he be charged with anything, no, but, did he do something stupid? Yes!
It's only "stupid" if we live in a police state. I'm not sure if the USA is a police state yet, but we're uncomfortably close. Also, why is it stupid if he should not be charged? If he should not be charged, then he should be free to take his computer (smartphones are computers) & personal data with him when leaving & entering his home country.
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I don't think he should be charged, a warrant wasn't issued for the data, so the data wasn't legally compelled. Therefore, what he destroyed at best was just requested data, and what he chose to hand over was no requested data. The stupidity of it, he had to know what was going to happen! The government, no government, is your friend. They're public servants in name, but not in accountability, and he had to know the government was going to turn his life upside down from doing that.
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> hidden encrypted VeraCrypt volume
Any random data on a partition is a suspected holder of hidden volumes. Even in cases where there are no hidden volumes, enjoy trying to convince border police of that while they're holding you indefinitely. This is just a friendly reminder that random data and plausible deniability do not mix. Holding random data can be a major risk if that is all you have and no ability to prove otherwise. Depending on who you are and where you're traveling, transparency may be the safest option.
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No border agent, without a warrant, will be able to compel an entire notebook + data inspection. I can turn it on, I can even boot it, and I've had to do that before for a US border agent. Since the volume is hidden, and it's encrypted, you would have no way to determine what is it, easily, or what it contains, in any pleasable reality.
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Dude, this has been settled case law for centuries. If it weren't, literally all customs inspections at the border would be illegal under Federal law absent an individually-signed search warrant.
He didn't destroy it, they did (Score:2)
He's not required to potentially incriminate himself by telling them the password. He told them a word. They entered it and destroyed the data.
Obstruction = Federal PMITA Prison, sorry (Score:2)
You're free to do whatever you want to your own data (subject to previous judicial order), but the moment a legitimate authority -- whether state or local law enforcement or a Federal agency like Customs and Border Control -- indicates that your data/property is subject to search or review, destroying such data is literal obstruction and will get you as much of a charge as if you flushed evidence away while a cop was asking for it.
If the LEO or agency is overstepping their bounds, once you've been put on no
Are they still Rights, or are they Wrongs now? (Score:2)
> "Obstructing federal law enforcement is a serious matter that has serious repercussions,"
And violating an individuals 4th Amendment Right comes with what now, an extra gold star on a border guards weekly report?
> A spokeswoman for U.S. Customs and Border Protection said in a statement that the agency had the authority to search the electronic devices of anyone entering or leaving the United States, regardless of citizenship, to enforce laws addressing terrorism, child exploitation, drug- and human-smuggling, visa fraud and national security threats.
A spokeswoman, needs a fucking lesson on the Bill of Rights. Either enforce them, or prove why you need to get rid of them. Hate the bullshit exception list, because you can hang any cannot-confirm-or-deny lie under the excuse of "national security".
No. It doesn't matter who is in the White House. Hell, the last autopen in charge elected an Open Border Czar as a reminder of how delus
They should put me on the jury... (Score:2)
The govt should select me to be on the jury, I'll make sure justice is served. ;)
This isn't the EU. He's going to win. (Score:4, Interesting)
He's going to win. This isn't the EU and it's about time someone stood up to these assholes and court. If the Constitution is anything more than toilet paper he'll win. The government deserves to lose and lose badly. I hope after he hands them their asses on this case he sues and takes the entire agency budget as an award.
Re:This isn't the EU. He's going to win. (Score:4, Insightful)
The argument is that you have no constitutional protections at the border crossing. Which is complete bullshit, but that's their position. Inovking the fifth amendment to not give up a password should be an option for all citizens at any time when engaging with US law enforcement.
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On paper you have the right to remain silent anywhere. IANAL but you don't have to engage ICE or CBP or speak to them. You can legally refuse searches even in the 100-mile exclusion zone, although some agents will illegally put up a big fight and lie and threaten you a bunch, so it's almost never worth it.
Refusing searches at a customs inspection point at an airport should theoretically only escalate to denial of entry. Deleting your phone while the customs agent has the authority to do a border search and
Re: This isn't the EU. He's going to win. (Score:1)
If you're a citizen or permanent resident, you can't be denied entry. Full stop. You can be detained for a short time, they can make you miss your flights, they can maybe impound your possessions, etc. But you can't be denied entry.
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I didn't word that carefully. You're not "denied" entry. In my experience they give you the option to turn back. If you insist you are legally allowed to enter the country and still refuse a search, then they will detain you and your devices until you comply.
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and by "detain you" ... overnight is typical if you pissed them off. your won't get your phone back ever
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You can deny entry to a US citizen unless they have an active warrant. Citizens have the absolute right to return even without identification.
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> The argument is that you have no constitutional protections at the border crossing. Which is complete bullshit, but that's their position. Inovking the fifth amendment to not give up a password should be an option for all citizens at any time when engaging with US law enforcement.
That is where they have him. He did not invoke his 5th amendment right and remain silent... he gave the federal investigators false information which he knew would result in the destruction of any potential evidence on his device.
If you refuse to give the CBP the password, they will hold you for questioning. They will tell you that you have no choice and that you must give them the password. This is a lie, but they are allowed to lie to you. They cannot refuse entry to a US citizen. They cannot hold yo
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Devil's advocate -- Is this different than flushing the drugs down the toilet when the police are at your door with a warrant?
Re:This isn't the EU. He's going to win. (Score:4, Informative)
It would me more like if the police could search your house at any time without one. They come to your house and you flush the toilet and they claim you flushed drugs with no evidence.
We have no evidence the person was involved in a crime, we simply know they destroyed data on a phone.
NOT going for funny, but... (Score:2)
I think he's already lost and will keep paying more money to the lawyers for a long time. Whether or not he gets convicted has become moot when the actual goal is scaring people into compliance.
Actually the obvious next step is to criminalize the duress passcode and go after anyone who creates such software. Fundamental advantage on their side because trying to advertise such software has to include contact information... Losses in court are irrelevant to the creation of fear.
Silly to suggest a solution on
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> Devil's advocate -- Is this different than flushing the drugs down the toilet when the police are at your door with a warrant?
Yes.
This is like being charged with destroying evidence because you were witnessed flushing something down the toilet prior to being detained. It might've been drugs, it might've been a fresh turd. If law enforcement can't follow the pipes and find the evidence, that's their problem. Does it mean some criminals might get away with crimes? Yeah, but that beats the alternative of charging people with destroying evidence unjustly, because they were just going to the bathroom at the wrong time.
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It's exactly that and people don't like it. When you're stopped at the border they're conducting an investigation. So yes, destroying something that could be considered evidence is tampering.
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Evidence of what, exactly? No alleged crime, no search warrant.
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It’s an active investigation. Any of your possessions could be considered as evidence.
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Yes. Here is why:
If the police are at your door with a warrant, they have already shown sufficient probable cause to a judge to show that a search warrant is justified. Due process is being followed.
If the police are demanding your password, you as a citizen of the United States have a constitutional right under the 5th amendment, and under legal precedent (Doe v United States, 1988) to tell them to go fuck themselves:
> The Foundational Doctrine: "Testimonial" vs. "Physical" Evidence
> Under the Fifth Amendment, the government cannot compel a person to make an incriminating testimonial communication.
> The Safe Combination Metaphor (Doe v. United States, 1988):
> The Supreme Court drew a famous distinction regarding self-incrimination: Compelling a suspect to surrender the physical key to a lockbox is permissible because it is physical, non-testimonial evidence. Compelling a suspect to reveal the combination to a wall safe violates the Fifth Amendment because it forces the suspect to surrender the "contents of their own mind".
> Application to Passwords: Most courts treat an alphanumeric passcode or PIN as the modern equivalent of a safe combination. Recalling and providing it requires cognitive effort and confirms knowledge, ownership, and control over the device and its contents.
Grabbing some dude's phone at the border under the guise of border control, when that du
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It's more like tying a string from the toilet flush-handle to the bathroom doorknob. Unless you open the door a certain way, you'll flush the drugs down the toilet.
That's even assuming there was anything as incriminating as drugs on the guy's phone in the first place.
And alas, I predict that this poor fellow will lose. He set up a booby-trap that destroyed evidence that the border inspectors were legally allowed to examine without a warrant.
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Flush the toilet with unknown contents. It's not evidence. If you put a landmine in the bathroom and someone steps on it, they didn't blow themselves up - you did it.
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They're going to make an example out of this guy so other people don't try it. Unless the DEI justice department really fucks up and the case is dismissed.
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Why do you think you wouldn't win in the EU? The EU is pretty proud on its privacy laws.