A U.S. Citizen Deleted His Phone’s Data. Now He Faces a Felony Charge.
“Samuel Tunick, a U.S. citizen, is facing a felony obstruction charge for using a duress passcode to erase his phone’s data during a customs search at Hartsfield-Jackson Atlanta International Airport. The prosecution argues that the data on his phone was evidence subject to seizure, while his defense claims the search was unlawful and politically motivated. This case highlights the complexities of digital data privacy and the extent of government authority at border crossings.
Federal prosecutors charged a man returning to the United States with obstruction because he gave them a passcode that erased his smartphone during a customs search.
It sounds like something James Bond would use: a gadget that self-destructs if it falls into the wrong hands. But it’s actually an open-source operating system that can be downloaded onto Android phones.
Federal prosecutors in Atlanta are bringing an obstruction charge against a U.S. citizen who gave customs officers what is known as a duress passcode, which activated software that erased the contents of his phone.
The authorities stopped Samuel Tunick, an Atlanta resident, for interrogation at Hartsfield-Jackson Atlanta International Airport as he returned to the United States on Jan. 24 last year, according to a November grand jury indictment. The authorities seized his phone before allowing him to enter the country. A hearing on the case was held last week in federal court in Atlanta.
The prosecution is one of the earliest known instances of federal authorities charging a person with destroying evidence with a program designed to wipe a device when a specific code is entered.
Mr. Tunick’s lawyers argued during the hearing last week that the seizure was unlawful, and 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. Opponents argue that the center, known as Cop City, would militarize officers and destroy precious green space.
The Statute Behind the Charge
The federal statute underlying the charge makes it a felony to destroy evidence or transfer assets to keep the government from seizing them, or to tip someone off about an upcoming search or wiretap. It carries a penalty of up to five years in federal prison, a fine, or both.
The act applies before, during or after a search. If the target of an investigation knows that a search or seizure is imminent, and that person acts to thwart it, he or she would fall under the statute, experts said.
The federal public defender’s office, which handles most cases in the Northern District of Georgia, said that only one other federal indictment had been filed on this charge in the last 30 years.
The 2019 case involved an accusation of destruction of evidence related to drug trafficking, said Matthew Dodge, a federal public defender who is on Mr. Tunick’s legal team.
Why Digital Data Can Be Seized
Courts have long treated digital data as property — think about intellectual property theft as one example — so a software wipe is treated in the legal system no differently than flushing physical evidence.
The government’s argument here is that the physical phone was just a container. The data itself was the property that they had lawful authority to seize, and inputting the duress code was the physical act that caused its destruction.
“The statute says explicitly it has to be for the purpose of preventing or impairing the government’s lawful authority,” said Daniel Richman, a law professor at Columbia University and a former prosecutor in the U.S. Attorney’s Office. “The key is he gave the code to the government, knowing that the entry of this code would erase the evidence.”
Does It Matter That It Was a Customs Search?
That it was a border search is central to both the government’s prosecution and the defense’s legal challenge.
Customs and border authorities believe that they have the right to search and seize incoming travelers’ digital devices without a search warrant or court order because travelers are not on U.S. soil until they’re authorized to enter.
Mr. Tunick, who was returning from a vacation in the Dominican Republic, and his lawyers argue that even at an international airport, travelers retain vital protections. They said that he was subjected to an unlawful detention, was never read his rights and was repeatedly denied requests to speak with a lawyer.
Federal courts, including the Supreme Court, have said that constitutional rights, like the Fourth Amendment, are diminished at the border because of the federal government’s increased interest in protecting our country, Mr. Dodge acknowledged.
How a Duress Passcode Works
A duress passcode is a privacy and security feature in which a user has previously configured a secondary passcode that is not their usual code to unlock the screen. If the user is forced or pressured to hand over their phone, they can provide this passcode instead of the one that unlocks their phone.
When the duress passcode is entered, rather than unlocking the phone, the operating system starts a full wipe of the device’s digital contents. The process leaves the physical device and hardware intact while completely erasing the underlying digital data.
In Mr. Tunick’s case, he used GrapheneOS, a private mobile operating system compatible with some Android phones.
No Details on the Original Investigation
“Many times the government wants to highlight what it was trying to investigate because that ups the stakes on what the defendant was doing,” Professor Richman said. “This is a case where I think they’re trying to avoid exactly that by focusing only on the destruction, and not what the investigation was about.”
The statute that is being used in this case has seldom been cited. It does not require the government to prove or explain the underlying investigation. A statute that is typically used carries a heavier maximum penalty of 20 years, but its use often forces the government to detail their underlying investigation.
“Whether they’ll succeed or not remains to be seen, if this goes to trial,” he said.
Timing Matters
Professor Richman suggested that travelers who decide to delete everything on their phone before going through an airport checkpoint simply because they did not want the government looking at their personal files have a strong argument that they did not act with the specific criminal intent to thwart an imminent search.
But there’s a turning point once you are stopped and are actively being questioned.
“Intentionally giving a wipe code to people you know to be exercising lawful authority,” he said, “is going to put you squarely in the realm of the statute.”
Kitty Bennett contributed research.
Adeel Hassan, a New York-based reporter for The Times, covers breaking news and other topics.“
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