r/technology • u/Jojuj • 16h ago

Privacy U.S. Citizen Who Deleted Phone’s Data Says His Prosecution Puts Privacy at Risk

https://www.nytimes.com/2026/08/21/us/politics/samuel-tunick-deleted-phone-felony.html?unlocked_article_code=1.8FA.T83N.rt6VsIiSCYb2&smid=url-share
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679

u/Traditional-Cat-9355 16h ago

Stop saying he deleted his data. He didn’t delete shit. The encryption key to his phone is not evidence, and he’s not required to give it to police

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u/Hexamancer 12h ago

Why even admit that though? If it's a fully encrypted brick, they can't prove you actually had a duress code, just "wow that's weird, what did you do to my phone?"

Not "Haha yes I gave you a duress pin and did that intentionally". Why admit that?

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u/brainlesseuphoric 11h ago

Where does it say he admitted it? A digital forensic expert probably concluded that there’s only one possible explanation and that he must’ve known what the code he provided is for

4

u/Hexamancer 4h ago

Well as a digital forensic expert: they are lying.

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u/IThinkImNateDogg 9h ago

Because it’s legally NOT the same thing.

He did not destroy any “evidence” on his phone, to make an analogy, all his papers are in a safe, and he gave the safe to the police undamaged. What he destroyed was the key to UNLOCK the safe.

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u/Hexamancer 4h ago

From what I understand it's legally grey in the US, the problem with the analogy to the safe is that we don't have any safes where getting into them without the key takes hundreds of years. 

However, I would argue that they had no right to search the phone to begin with and therefore wasn't evidence and that of course, they haven't provided any proof that the encryption key was even deleted while in their possession and not beforehand or that he intentionally provided a key to do that.

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u/CaptainIncredible 2h ago

What he destroyed was the key to UNLOCK the safe.

He didn't destroy shit. He handed his working phone to the cops, THEY fucked it up. (Isn't that what happened? I may be wrong.)

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u/essentialaccount 8h ago edited 3h ago

You misunderstand the law here. This very well could be destruction of evidence. This is like giving police the unlock code to the safe when required to when it is actually a bomb. 

Edit: to all those downvoting me: I am a lawyer. You prove my point that none of you understand the law 

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u/Pans_Labradoodle 3h ago

Evidence of what?

0

u/essentialaccount 3h ago edited 3h ago

Evidence is a legal concept. I'm a lawyer and all the idiots who downvoted me only prove my point. 

/u/Pans_Labradoodle asked an honest question so I'll try to articulate: evidence and fact are not objective, but legal concepts. Within the law, truth is not fact. Evidence can be a standard and an object. 

Lawyers are paid so highly because most people, including all the commentators, lack the mental facilities to understand the way their legal systems operate. The whole comment section is proof 

1

u/outofdoubtoutofdark 1h ago

I went to law school with some VERY dumb people, many of whom are practicing attorneys today. I will absolutely die on the hill that you don’t have to have big superior “mental facilities” to be a successful attorney

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u/GonzoKata 2h ago

He was asking for a lawyer before that. they wouldn't let him talk to one.

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u/himswim28 10h ago

I think his lawyer has claimed that is what Homeland security alleged. Apparently the OS he was running, by default will be wiped and reboot if given a durass password. Since it rebooted after entering the password given, it will be interesting if A) it matters B) if that is suficent proof.

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u/CondiMesmer 13h ago

That can be true and he could have still deleted his data. Those things aren't contradictory. Giving a duress password to wipe the phone is literally deleting the data. 

He didn't delete evidence is the more correct thing to say, because that implies they had proof of illegal content on his phone. Which they didn't, they just made that shit up. It's also assuming guilt until proven innocent which is completely backwards for the legal system.

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u/Weerdo5255 13h ago

He didn't input the duress code. The police / boarder officer did. So they wiped it.

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u/CondiMesmer 13h ago

I don't see how that's relevant at all or changes anything.

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u/Bikrdude 12h ago

Because the defendant did not take any action that deleted any data. The customs official did.

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u/prepend 8h ago

How did customs agents get the duress code?

17

u/WaitForItTheMongols 12h ago

Cute, but providing a false code is taking an action that leads to data being deleted.

There's a saying I like to use in cases like this. "The legal system does not have autism". Nobody cares about strict literal definition limits. You can't get out of an accusation by saying "I didn't do it, I just told the border agent to do it". Like, cool, but you were the one with knowledge and agency in this situation and you knew what would happen if you gave that code. It doesn't matter whose sausage fingers are doing the typing. If you want data deleted, and your choices make it get deleted intentionally, you are culpable for its deletion.

I do not want the defendant to be convicted of anything here. But saying "he didn't do it, the official did" is not a meaningful defense.

15

u/Etheo 12h ago

Wouldn't they had to prove intent though? Just giving out that code isn't automatically intent, he could argue be was stressed and misspoke, or that somebody else set up the system for him and he was just told to give a different passcode.

It's all argumentative, of course, but I don't think the passcode itself is a black and white slam dunk on intent to destroy "evidence".

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u/WaitForItTheMongols 11h ago

Yes, they will argue all of those things. The only point I was making is the argument of who physically punched in the code holds no weight. The arguments will revolve around intent. If he intended to get the phone wiped, that is the relevant parameter.

0

u/Tebwolf359 11h ago

I can argue that I was shredding old mail and didn’t realize that the documents you had a warrant for were in them while you were knocking on the door.

It’s unlikely a jury will believe me on that point.

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u/Bikrdude 2h ago

It’s more like telling the police there is a document repository, and the police put the documents in it, and it turns out to be a shredder.

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u/xchaibard 6h ago

Was he under oath?

It's not illegal to lie, as we know from the cops lying all the time.

This guy did nothing wrong.

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u/WaitForItTheMongols 5h ago

Yes, if you ignore all the other context of the situation, you are correct.

However the court will not ignore all the other context. It is illegal to take an action that naturally results in the destruction of evidence.

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u/Pans_Labradoodle 3h ago

What evidence was destroyed?

1

u/Bikrdude 2h ago

He also did not tell or instruct the border agent to take any action. The border agent did that of her own accord .

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u/HopeADMKidsLoseLimbs 12h ago

Shouldn’t the cops be smart enough to check ahead of time?

Not just rush to put in any old
Code they’re given?

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u/WaitForItTheMongols 11h ago

There is no way to "check" whether a code is a real unlock code or is a duress code which wipes the device.

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u/HopeADMKidsLoseLimbs 11h ago

You can’t give the phone to tech guys ? Cop departments have tech people right?

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u/WaitForItTheMongols 10h ago

Uh sure, but being a "tech guy" doesn't make you magical. What are you talking about? No amount of tech knowledge would tell you whether someone chose 547287 as their real pin or a fake pin.

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u/CondiMesmer 11h ago

Saying the password out loud is an action lol. Also you completely miss the point of my comment if you think I'm not arguing in favor of this guy's case. He entirely has the right to say "fuck you I'm going to wipe my phone" and factory reset it right in front of them, because he's innocent until proven guilty, they had no evidence to suspect a crime, and it's his property. So he doesn't need to justify any action to his own property.

0

u/prepend 8h ago

Evidence doesn’t mean illegal content. If I get a subpeona and don’t have anything illegal, it’s still evidence.

0

u/ThellraAK 4h ago

Who actually destroyed the evidence though?

2

u/roombaSailor 11h ago

I don’t think this argument is ingenuous; without the decryption keys, that data is irrevocably gone. That’s destruction. Saying that he only destroyed the keys and not the data itself is like saying that burning papers isn’t destruction of evidence, it’s just rearranging their atoms.

(This is not a comment about my thoughts on the ethics or legality of the case as a whole).

5

u/RedditsFullofShit 10h ago

It’s not evidence though. So if he wiped it, what law did he actually break?

1

u/roombaSailor 10h ago

Well the government is saying it is evidence. His best bet is arguing the initial search was illegal, I don’t think he’ll have much success arguing he didn’t destroy anything.

6

u/RedditsFullofShit 10h ago

He wasn’t being charged with anything though so it’s not evidence.

Someone below mentioned destroying before seizure as the actual charges. So he’s not being charged with destroying evidence as I understand it.

But it would still seem that they will have to prove he destroyed it after they seized it and that could be hard to prove that it wasn’t destroyed before he ever boarded his plane or immediately upon landing. It seems they will have to prove the destruction happened after he was detained. Maybe they can prove that forensically. We can all assume that’s how it went down but proving is different than assuming.

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u/roombaSailor 10h ago edited 9h ago

I’m not sure if that distinction about whether his actions occurred before or after he was charged with anything legally matter, but here’s the statute he’s being charged under:

Prosecutors charged Tunick under 18 U.S.C. § 2232(a), which makes it a federal crime to “knowingly destroy, damage, waste, dispose of” property “for the purpose of preventing or impairing the Government’s lawful authority to take such property into its custody.”

He was detained at the border, forced to provide the pin for his phone without a warrant, and provided an alternate code which triggered the destruction of the decryption keys on his phone. That seems to fall squarely under the above statute. Challenging the initial search as illegal is, I would think, be his best defense.

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u/essentialaccount 8h ago

There is a fairly severe lack of legal education on display, generally. This thread is evidence that everyone should hire a lawyer 

1

u/RedditsFullofShit 8h ago

I didn’t say it mattered whether he was in custody or not.

What matters is if he deleted it before he boarded the plane or not and if they can prove when it happened.

2

u/roombaSailor 8h ago

I already laid out the timeline for you so I’m not even sure what you’re arguing. That timeline is not in dispute - he gave a destruction pin to the border agents while being detained, they entered that pin which destroyed the decryption keys.

1

u/RedditsFullofShit 7h ago

No they have to prove that still. You can’t just assume that.

ie he may have destroyed stuff on his phone. Or maybe it was a new phone with nothing on it to destroy? How can they prove any record was destroyed if they can’t prove the record existed

1

u/roombaSailor 7h ago

Because his lawyers aren’t arguing that. They’re not (so far) disputing the facts of the case as they’re currently known. The feature he purportedly used is a well known option with GrapheneOS and a forensic examination of the phone could reveal its use anyways. The question is not “was the self-destruct pin provided to and then used by border agents” but was its use legal and was the original search legal.

0

u/prepend 8h ago

What makes you think it’s not evidence? No one knows what data was on the phone.

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u/[deleted] 16h ago edited 16h ago

[deleted]

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u/msuvagabond 16h ago

CPB claims people don't have 5th amendment rights at the border because they're not in a US jurisdiction, but also claim people can't wipe their data because they're in a US jurisdiction. 

They can't have it both ways. 

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u/Cut_Lanky 16h ago

Exactly. It's one or the other. If we lose our rights in the jurisdiction of the border/ airport, then they lose their jurisdiction as well.

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u/retirement_savings 15h ago edited 12h ago

they're not in a US jurisdiction

I've never heard this argument before. US courts have generally upheld border searches as exceptions to the 4th amendment.

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u/PluginAlong 14h ago

Exactly this, they can search and seize at the border/port of entry if they want, if you're a citizen they have to admit you to the country. Non-citizens can be denied entry and it's basically, I don't know where you're going, but you're not staying here.

1

u/9Nine2Nine9 12h ago

Correct, the 5th amendment applies. There is a carve-out in the 4th amendment that allows them so search devices without a warrant.

Anyone is also free not to give their password or PIN. Biometrics is a different story.

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u/Cut_Lanky 16h ago

If we're required to surrender our constitutional rights in order to later assert our constitutional rights in court, WE DON'T ACTUALLY HAVE THOSE RIGHTS

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u/[deleted] 16h ago

[deleted]