I’m very interested to see how this shakes out in the courts. Hopefully the ACLU or EFF will jump on this.
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I think the recent supreme court rulings is going to make things tough for this individual. Who knows if boarder patrol would of actually only search the phone by hand but they clearly can legally sieze your phone at the boarder.
Corresponding GOS forum discussion
Using duress password in this way is generally ill-advised on the GOS forum. It is pretty plainly destruction of evidence. At the very least, the authorities will absolutely try to pin that on you
The state isnt going to crack a GOS device. The data was secure at rest. Unless there is a serious risk that you will be physically compelled (tortured) to reveal data that endangers lives, the duress password wipe is kind of redundant & carries some severe consequences
The cleverest implementation I’ve seen: write the duress password down, keep it in your wallet. You don’t trigger the wipe, nor do you instruct authorities to trigger the wipe. If asked, you don’t remember what that password is for. I am not a lawyer, but this feels far less prosecutable
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Officer demanded access, Tunick provided a password, they entered it, and the phone wiped.
There is nothing the government can pull out their ass since this is the first known case. No quoting irrelevant court cases, nothing, they are screwed.
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I heard others suggest to make it an easy to guess password (like your birthday or 0000) that people might ordinarily try first.
(Not a lawyer).
For most people, I’d probably recommend not using this feature even though there is a temptation to feel like a secret agent.
In practice, it’s not very useful in stopping a criminal (who might physically harm you) and you’re basically playing with fire when it comes to law enforcement. “Technically legal” could still mean time in jail and crushing legal fees.
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Evidence of what? I thought he was asked to hand over his phone, not accused of a crime?
Was this a speculative search or was he accused of something?
He could’ve wiped his phone an hour before going through border control. Would this be an offence? If not, by the same token, why not?
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CSAM according to the article
Tunick’s attorneys accused the government of demanding access to his phone under the pretext of searching for child exploitation imagery,
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Your rights at the US border, even for a returning US citizen, are very different. Border agents have broad leeway to search you and your belongings, including digital devices, with little practical restriction.
The question about wiping the phone before reaching the border is an interesting one, legally. Not sure if that’s been tested in court. But it would definitely arouse suspicion and may subject you to more scrutiny.
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Hmm, thought destroying any possible evidence (hard drives, printed documents etc.) will make them sue you. Wiping a phone should not be different, no?
When Tunick provided his passcode and the authorities entered it, “the screen went blank, flashed several times and the phone appeared to restart.” The authorities seized his phone anyway, before telling him that he was free to go and could enter the United States.
Prosecutors later charged Tunick under a federal statute that makes it unlawful to knowingly destroy or damage property to prevent authorities from seizing it. Tunick has pleaded not guilty.
Is an interesting part of the article. The boarder patrol let him go initially. “siezed” his phone anyway and then charged him for preventing them from sieizing the phone.
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did you missed this part:
was instead investigating him over his association with a long-running environmental movement called Defend the Atlanta Forest…
yeah I did, not sure what to make of it. The attorney claims one thing but the motion to supress is a completley different thing.
I know nothing about laws, but actively destroying a device full of potential evidences doesn’t seem to be a good option. At best, it would be written on a paper, hidden in a place where it is relatively easy to find, and the officers occasionally find it and enter it on their own, destroying the phone.
However, I’d rather rely on the encryption and security of the GrapheneOS since it’s impossible to crack even in AFU mode.
The reference to CSAM struck me when reading this. Wouldn’t that be a potentially effective scare tactic for LE to use? Suggest everyone has CSAM. For instance if I was stopped and told they wanted to look at my phone under suspicion that I possessed this I would be genuinely tempted to immediately give them full access to show I have none!!
Of course they could then put it on the phone but that’s a whole other conspiracy theory…
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They can essentially use whatever tactics they want. Don’t talk to cops. They can lie about whatever they want, but if you lie they can prosecute you for that. Never talk or do anything before getting a lawyer.
Using it too often would perhaps dilute the strategy. In the US, the burden of proof is on the prosecution so no, you should not be tempted to give them any access. They are not there to help you, at all.
Sounds like a good reason not to give your phone password.
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That video was priceless. Thanks for sharing. I’ve seen the one-minute version of that (which is funny and also true - and NSFW), but I really enjoyed the long version.
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Thought I’d add this Github repo as it touches the topic of using ant-forensic “duress” features…
Most travelers just want to clear the checkpoint quickly and assume their phone is fine. What they often don’t account for is residual data like old photos still in Snapchat Memories or camera roll, cached media from apps, thumbnails that survive deletion and CBP knows that. A basic manual search can surface that material even when the person has no intentional illegal content. The ‘CSAM check’ framing works because people focus on the worst case category and overlook the more common issue of forgotten digital clutter.
yeah but OTOH if this person actually has CSAM material on their phone, the penalty for destroying evidence vs the penalty for being caught with CSAM is a pretty easy risk assesment (in some states thats the difference between a potential 6 month jail sentence and a 20 year jail sentence).
Or up to 20 years for tampering.
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.