https://www.404media.co/man-charged-for-wiping-phone-before-cbp-could-search-it/
A man in Atlanta has been arrested and charged for allegedly deleting data from a Google Pixel phone before a member of a secretive Customs and Border Protection (CBP) unit was able to search it, according to court records and social media posts reviewed by 404 Media. The man, Samuel Tunick, is described as a local Atlanta activist in Instagram and other posts discussing the case. The exact circumstances around the search—such as why CBP wanted to search the phone in the first place—are not known. But it is uncommon to see someone charged specifically for wiping a phone, a feature that is easily accessible in some privacy and security-focused devices. 💡 Do you know anything else about this case? I would love to hear from you. Using a non-work device, you can message me securely on Signal at joseph.404 or send me an email at joseph@404media.co. The indictment says on January 24, Tunick “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.” The indictment itself was filed in mid-November. Tunick was arrested earlier this month, according to a post on a crowd-funding site and court records. “Samuel Tunick, an Atlanta-based activist, Oberlin graduate, and beloved musician, was arrested by the DHS and FBI yesterday around 6pm EST. Tunick’s friends describe him as an approachable, empathetic person who is always finding ways to improve the lives of the people around him,” the site says. Various activists have since shared news of Tunick’s arrest on social media.
The indictment says the phone search was supposed to be performed by a supervisory officer from a CBP Tactical Terrorism Response Team. The American Civil Liberties Union (ACLU) wrote in 2023 these are “highly secretive units deployed at U.S. ports of entry, which target, detain, search, and interrogate innocent travelers.” “These units, which may target travelers on the basis of officer ‘instincts.’ raise the risk that CBP is engaging in unlawful profiling or interfering with the First Amendment-protected activity of travelers,” the ACLU added. The Intercept previously covered the case of a sculptor and installation artist who was detained at San Francisco International Airport and had his phone searched. The report said Gach did not know why, even years later. Court records show authorities have since released Tunick, and that he is restricted from leaving the Northern District of Georgia as the case continues. The prosecutor listed on the docket did not respond to a request for comment. The docket did not list a lawyer representing Tunick.
until this isn’t an unknown it’s impossible to voice opinion on the legality of this action. If they had evidence that there was something incriminating or against the law on the device and can prove the user intentionally destroyed the info to impede the investigation(honestly this last part is fairly easy as long as the first part can happen) then yea what he did would defo break the law, but until those aspects can be determined this seems like a massive abuse of that persons 1st(due to activism), 4th (due to the seizure of private property without a lawful search), and 5th(again private property) amendment rights.
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I think your speculation is probably going to be fairly close to reality, but that makes their case very difficult to prove. If the FBI comes to my house and tells me that they’re investigating a crime and then I delete data, then probably I have broken the law. And I would have known it. So I would get convicted. But Border Patrol loves to go on fishing expeditions and search digital devices when there is no evidence that a crime has been committed. And if that’s the case, then I don’t have any obligation to preserve the data. And it doesn’t even matter what Border Patrol claims later because the legal standard is going to be what I believed at the time that they tried to go on their fishing expedition.
I think we can safely conclude that there was no warrant because no one has reported there was a warrant and that is the kind of thing that they would have reported. And if they had one they would have seized the phone itself. So we can reasonably conclude that this is a situation where they told the guy, unlock your phone or we’re going to keep you locked up or we’re going to take your phone.
Isn’t there a right to not self-incriminate?
There is, but there is a difference between not admitting you’ve broken a law and impeding an investigation into whether you broke the law or destroying evidence.
The particulars are going to be very important in this case. It’s also possible they have no case and they’ll just use the legal system to torture him, ruin his life, and waste his money then drop the charges before it ever sees a judge.
I’m having a tough time thinking of an example where this makes sense. I guess if there was one incriminating document they had evidence was on your phone and then you wiped it you’d be interfering with the investigation under the assumption there could be more? If they knew a out the one then they would have a copy of it and some proof you have it on your phone. You wiping it doesn’t help you much for that particular crime. If it’s a crime to delete the stuff they didn’t know you had, that sounds ripe for abuse. They could find something banal like a miscompleted tax form and use it to do a deep dive into someone’s entire document library, browser hx, etc. Perhaps I’m on the wrong side of the law on this one, but it seems like the law should favor a right to avoid self-incrimination and a right to protection from unjust violations of privacy. Anyway, while it looks suspicious, couldn’t it just be an accidental data wipe? Cops making accusations against someone could make them nervous, maybe make typing finger shaky and inaccurate. Maybe they could mis-enter their password 10 times in a row and trigger a wipe?
yea you have it yes, if they have confirmation that you had said evidence, and they were seizing the device to collect more evidence regarding it then it would be obstruction of justice and destroying evidence, but they need to be able to prove that claim. Unless they can prove that claim then it’s an unlawful search (excluding port authority specific laws regarding searches because checkpoints generally have reduced restrictions on lawful searches)
Those reduced civil rights related to border patrol extend about 200 miles in from every U.S. border.
As well as 200 miles from every international airport inside the US.
Another case is if they get a warrant for whatever’s on your phone, you knew, and then erased your phone.
Warrants make more sense, because a warrant can be issued just due to probable cause. They need that cause, but that cause doesn’t have to be directly related to your phone. Once you know they have a warrant to search it, you would qualify as “knowingly” altering or destroying evidence.
Erasing one’s phone if you had a warrant for search is exactly what I would advise someone to do. Take your chances the evidence destroying charge over handing over what they might use against you unknowingly. For all I know my stash of articles on the efficacy of vaccines could be deemed contraband in this day and age or perhaps my trans cake fart video library now violates a state law with each video bearing a one year prison sentence. There’s a term for anyone that trusts the US legal system is going to treat them justly and that’s “damn fool”
I agree with the sentiment but not with the advice “commit a felony to avoid maybe getting a felony”. There isn’t a chance you’ll get charged with destroying evidence if they’re already looking at you under a microscope like your hypothetical.
Anyone that concerned needs to just not store sensitive data on their phone, and use a messaging app that doesn’t permanently store messages, either. That way you didn’t erase your phone, AND they find nothing. Attempting to secure your data from the cops while you’re already under the lens with a warrant is far too late.
At this point I think everyone should be concerned. Use encrypted communication as much as possible. I find it really helpful to have my communications saved, so I’m not going to live with the degree of sacrifice needed to be a ghost. I have prey setup for remote wipes and have practiced rapid factory reset wipes locally.