Protester Charged With Destroying Property After Giving CBP Agents His GrapheneOS ‘Duress’ Mode Passcode
from the be-careful-what-you-ask-for dept
Atlanta, Georgia’s attempt to erect a law enforcement officer training center in Atlanta was met by months of concerted protests. As the months stretched into years (the center was announced in 2021 but did not complete construction until 2025), opposition efforts ranged from peaceful protests to heated exchanges during public comment sessions to attacks on construction equipment by people seeking to shut the project down.
The government has been pursuing criminal charges against protesters since 2023 — efforts that included the state of Georgia ringing up 61 protesters on RICO charges. That case stalled out last spring, but both state and federal prosecutors are still hoping to ring up a few headline-making arrests that might make it easier to depict anti-government protests as terrorism when engaging in prosecutions.
The desire to turn protesters into terrorists is generating collateral damage. With the prosecution of Cop City protester Sam Tunick, the federal government is apparently hoping to convert a cell phone operating system into de facto evidence of criminal intent.
Here’s how this fucked up turn of events began:
Sam Tunick was stopped for interrogation at Atlanta’s Hartsfield-Jackson airport on 24 January last year, after vacationing in the Dominican Republic. Unbeknown to him, federal authorities had put him on a terrorism watchlist because of his alleged association with the movement against Cop City.
What happened next was even more fucked up (from Tunick’s motion to suppress evidence):
The two CBP officers conducting the initial interrogation of Mr. Tunick never read him his Miranda rights and, further, Mr. Tunick stated early in the interview that he did not want to continue speaking without a lawyer. Yet the officers repeatedly ignored Mr. Tunick’s requests to speak with his lawyer, continued to question him, and declared: “because you’re refusing to talk, which is your right, we have the authority to go through your phone to see what we’re looking for.” [Timestamp 20:00:40].
After the officers requested Mr. Tunick’s cell phone password a second time, Mr. Tunick asked again why he was not allowed to call his lawyer, and the officers responded: “when it comes to immigration and customs, right, it’s a whole different ballgame. . . and we have search authority, we don’t need a warrant.” [Timestamp 20:05:09].
The CBP officers explained that Mr. Tunick would have to give the officers access to his phone, whether it was done with his cooperation or not and, eventually, Mr. Tunick provided a password to his cell phone and e-reader.
Also this:
The interrogation, including the questions about child sexual abuse images, was “a pretext for a fishing expedition into Mr Tunick’s connections” to the movement against Cop City, according to the motion.
The officers made it clear they would either seize Tunick’s phone or return it to him after they’d searched with the aid of his provided passcode. Either way, the officers were going to search his phone.
So, Tunick gave the officers what they asked for: a passcode. And then this happened:
Agent Findley and several others repeatedly asked Tunick to open his phone during the interrogation, telling him they would seize it if he did not. When he finally provided a passcode, “the screen went blank, flashed several times and the phone appeared to restart”, according to the motion.
What the agents were witnessing (and were apparently unaware was a third option they hadn’t considered) was the triggering of cell phone operating system GrapheneOS responding to a “duress mode” passcode entry.
GrapheneOS users have this option…
GrapheneOS provides users with the ability to set a duress PIN/Password that will irreversibly wipe the device (along with any installed eSIMs) once entered anywhere where the device credentials are requested (on the lockscreen, along with any such prompt in the OS).
The wipe does not require a reboot and cannot be interrupted.
…which somewhat mitigates the deleterious effects of this government option:
Officers demanded a passcode. Tunick provided them with one.
This did not involve Tunick physically interacting with his phone at any time. And while we’re going to have to wait to see how this plays out in court, it seems like compliance (however malicious that compliance might be) is still compliance. It seems extremely vindictive to punish someone for the end result of the government’s actions.
At any point, the officers could have dropped the CSAM pretext and/or given Tunick access to his constitutional rights. Instead, the government leveraged its “Constitution-free zone” privileges in an attempt to intimidate someone into full cooperation, all while pretending this was about illicit images, rather than Tunick’s activism against the government.
And the government knows its case against Tunick is weak. It’s not charging him with destroying evidence or obstruction. Instead, it’s relying on a seldom-used statute that criminalizes destroying property the government wants to seize.
That is some weak sauce. But it’s the sauce the government wants to use. If the court allows this to proceed without suppression, the government will be allowed — and encouraged! — to consider the mere existence of GrapheneOS on a person’s phone as evidence of criminal intent.
“It’s concerning – and sends the message that [GrapheneOS] is criminal by default,” said Christophe Boutry, a cybersecurity and surveillance expert. Boutry and Bill Buddington, senior staff technologist at the Electronic Frontier Foundation, both said they had not seen a similar case.
This is the DOJ trying to open the Overton Window while simultaneously trying to convert a lot of protected speech into acts of terrorism.
I would hope the court rejects any counteroffers from the government. Agents demanded a passcode and a passcode was provided. That it didn’t provide them access to the phone’s contents is on them. And it’s pretty clear the government knows it barely has a case here. If it thought it could connect the legal dots convincingly, it would have gone for an obstruction charge, rather than the bullshit it’s pulling here. The government could still seize the “property.” That it now contains nothing it might use to generate more charges against Tunick is on the officers who decided to abuse the “border” privilege to cheat an American out of his constitutional rights while pretending to give a fuck about CSAM.
Filed Under: 1st amendment, 4th amendment, cbp, constitution free zone, cop city, doj, fbi, protests, sam tunick
Companies: grapheneos
Comments on “Protester Charged With Destroying Property After Giving CBP Agents His GrapheneOS ‘Duress’ Mode Passcode”
The mere existence of 'you have no constititional rights' zones is a legal abomination
I would like to think that the judge involved will see through the government’s farce of a case and realize that they and the legal system they represent are being weaponized against the citizenry here but far too many(read: more than zero) judges buy the ‘it’s not a fifth amendment violation to force people to unlock their devices despite the entire point of forcing someone to do that is to provide evidence to incriminate them’ argument so who knows?
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It’s also ridiculous that border agents were ever allowed to search data. Once they verify that the phone is not a disguised weapon or a container for drugs or such, that should be the end of it. Similarly for papers; once they’re confirmed to be just paper and ink, agents shouldn’t be allowed to inspect them further without very good reason.
Data is something that could be wiped before a border crossing and recovered afterward via the Internet. A nice feature for Graphene would be to make that as easy as possible. Encrypt, upload, and wipe everything except the data the user explicitly chooses to be preserved (like a lawyer’s contact details, maybe the password to an otherwise unused and empty e-mail account, a Customs app—or just say to preserve the “border crossing” sub-account), and switch to a new temporary passcode. Then click “recover data” mode on the other side. The data will thus not be crossing the border with the user, but at two different times when the user has more rights.
The same feature would also be great for anti-fascist protests, among other things. Making the recovery passcode a confession to a crime could have some interesting implications.
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Would the crime need to be something plausible legally? Like “I am going to assasinate the president.” Is plausible. “I shot Abraham Lincoln.” is not.
What Fifth Amendment? If you mean the Fifth Amendment to the U.S. Constitution, fuggetaboutit. It’s routinely ignored by just about every cop with no consequences.
“What are you in for?”
“I killed eight people. You?”
“I got a TSA agent to wipe my phone.”
“Shit, they’ll put anyone in here now, huh?”
This is not going anywhere
The law is for protecting the value of seized property from destruction by its original owner.
Evidence is not government property. If the government wanted to claim that the phone was theirs to confiscate and resell, they would still not be owners of the data on the phone.
An obstruction charge would probably have a chance in court. But confiscated property destruction? Absurd. They’d have to prove that the phone became their property first, including all of its data. And their claim appears to rely on the data that they don’t have and that probably would not even have supported their repossession desires.
While simultaneously pushing to institute secret courts with secret evidence for immigration-related “terrorism.”
Is data “property” now, generically?
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If it were, you could sue iTunes and whatnot for destroying your property when they delete stuff they stopped licensing from your account.
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Only if the person suing could establish themself as an owner.
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Well, oddly enough, the CBP and its agents clearly were not the owners of the property (device &/or data) that they’re now charging Sam Tunick with destroying.
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But, as the article points out, that’s not even what the law he was charged under, is about.
If nothing else, the technicality that he didn’t enter the code himself means that they destroyed the property, not him. And despite the data being deleted, it did unlock the phone and provide them access to what was on it when it rebooted, so he did comply.
But yeah, [insert I should buy a boat meme with “I should install Graphene OS” free advertising here].
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It’s rather surprising they didn’t go with a “lying to a federal officer” charge, which at least might be a thing that actually happened (then again, this person did provide a valid passcode, after which I assume the phone was “open”).
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It’s not that surprising when one remembers the only individuals left at the DoJ are completely incompetent.
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I concur: he provided a passcode as demanded; officers were negligent in not asking for a specific passcode, and it is thus their carelessness that resulted in the phone being wiped.
Further: in order for them to prove that evidence (of any kind) was destroyed, they must prove that it was there in the first place. I don’t see how they’re going to be able to do that: they’re merely claiming that evidence was present without anything to back that up.
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He had no obligation to provide them with a passcode; he had every legal right to decline; so I’d posit it doesn’t matter whether they asked for a specific passcode.
Additionally, the statute is clearly about destruction or damage to physical property (not “evidence” – hence no claim of destruction of evidence). Wiping a phone does not damage or destroy it. It’s still a perfectly good phone (once reset).
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The duress pin only erases encryption keys, the quickest thing it can do. The OS therefore is in broken state and cannot boot. If they wanted to see some sort of GUI they’d actually have to select “Factory reset” on the recovery screen which pops up because of the bootloop.
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That “therefore” doesn’t really follow; there’s no reason wiping user-data encryption keys should cause the OS to not boot. If that’s how it works, it’s caused by other aspects of the design. The read-only GrapheneOS system image would not really benefit from being encrypted.
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I think not being able to decrypt any data is a pretty major reason to fail to boot… Keep in mind that it’s not only “user” data that’s encrypted with a “credential” key, there’s a lot of system configuration that is also encrypted with a “device” key (see Direct Boot).
I may have oversimplified. The OS image is intact of course. But the OS is never made aware that all key derivation material had been wiped, unlike a factory reset wipe which happens in a special mode the device reboots into. Duress wipe happens as the OS is running. (I wouldn’t be surprised to learn that the phone turns off just because the kernel panics from suddenly only seeing garbage data.)
I looked up a number of videos before commenting and all of them show phones entering recovery mode and prompting to factory wipe because the data partition is unreadable.
The main thing I was trying to point out is that the phone absolutely did not unlock nor give access to whatever data.
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Well, by your own description, it is unlocked in the sense that the agents could do the factory reset to get full access to a GUI on the device. It didn’t give them access to his data, but that’s beside the point. They entered the duress code. They could have also chosen factory reset. It’s not what they wanted, but they had the power to do so. And the charge doesn’t reflect a failure to unlock the phone, so it doesn’t really matter anyway.
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And set the duress passcode to “1-9-8-4”
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“1-9-8-4” is just a little too obvious.
Even these days, a current CBP, ICE or DoJ agent might catch on — it would be far better to use “4-8-9-1” instead.
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Not to people who’ve never read a book.
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Wouldn’t 0451 be more apt then?
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Might I suggest 3-6-2-1. It’s a little more…esoteric, but it’s an “if you know, you know” reference nevertheless. 🙃
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I’ll have mixed feelings if that is what gets the charges thrown out.
Instead, I want to see it thrown out for the illegal actions of CBP. When they refused to let him talk to his lawyer, that should be grounds for a layperson to think they aren’t up to anything lawful.
One tip I saw elsewhere, in relation to this story, is to write down the duress passcode somewhere; perhaps on some paper in one’s wallet, maybe even with “do not use” or “emergency passcode” written beside it. If questioned about it, invoke the right to remain silent, and just hope an agent tries it themself.
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I’m pretty sure agents tried 0000 and 1234, so just use it as duress passcode.
gunna need another box of crayons!
even in a so called “constitution free zone”. you still have a 5th and 6th amendment right! so when he asked for a lawyer. questioning should have ended there! but NO!!! they couldn’t help themselves and continued to badger him and demand a passcode! so he gave them one! so anything after that is the fruit of the poisonous tree! but of coarse when you go judge shopping. little things like constitutional rights are just words on shit paper!
so… this will be just another case that will either get steam rolled into prison! with an appeal in the waiting! or get tossed after a regeam change! and there still is possibility that a fed up with the criminal cartel masquerading as government jury finds him NOT GUILTY!
The legal industry has much to answer for. Any federal prosecutor who signs their names on filings like these deserves criminal punishment themselves.
Why didn't he trust the USB lockdown?
When I first read about this, I wondered why he didn’t trust GrapheneOS’ USB port lockdown. The port can be configured such that it can only be used for charging if the screen is locked – no access to data. With a sufficiently strong passcode to prevent brute-forcing it, that should have worked. Or, just use a cheap burner for travel.
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Perhaps to avoid being beaten with a wrench, per the embedded comic strip. The officers were already acting like they were above the law.
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No warrant. A refusal to let them talk to his lawyer.
They weren’t acting legally. If you were in Mr Tunick’s position, how far would you be worried about them going to get the passcode out of you ?
The duress code is the one defense he had against rubber-hose cryptanalysis.
Quick question
Judge: Agent Findley, what evidence was destroyed?
Sounds to me like he cooperated. The duress passcode didn’t damage his phone; it repaired what was a fancy brick (which would have been useless to officers) back into a working, factory-fresh phone.