US border agents can lie to search phones, but travelers who wipe data face criminal charges

Customs and Border Protection (CBP) agents want to know what's in your phone—and they won't take no for an answer. Courts have long held that border cops don't have to respect the Fourth Amendment when searching for contraband, and the CBP claims that this power includes the data stored on travelers' phones. Now, the feds are trying to argue that erasing that data is a form of illegal obstruction.

The Case of Samuel Tunick

Samuel Tunick, a participant in the Defend the Atlanta Forest movement, was returning from a vacation in the Dominican Republic in January 2025 when a CBP Tactical Terrorism Response Team pulled him into a windowless room and asked for his phone password.

"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," an agent told him.

Instead of giving his real password, Tunick gave the agents a code that would erase all the data on his phone—known as a "duress password." He was using a Google Pixel loaded with GrapheneOS, an operating system known for its nearly airtight security.

The feds charged him 11 months later under a rarely used law against "destruction or removal of property to prevent seizure."

Legal Arguments

After months of paperwork and delays, the case had its first hearing last week. Tunick's lawyers argued that the government obtained the duress password "in violation of his Fifth and Sixth Amendment rights," and therefore everything that happened to the phone should be thrown out of court as "fruits of his unlawful interrogation."

They also argued that the Fourth Amendment exemption for border searches should not apply to the data on phones.

"Officers were not permitted to disregard all constitutional protections afforded to Mr. Tunick simply because he was at the border," the lawyers wrote in a filing before the hearing.

Expert Advice on Data Protection

Several months before the Tunick case, several experts advised Reason that U.S. citizens can protect their data from border searches by wiping their devices before traveling. (It is not so simple for foreigners, since the CBP can turn them away for any reason, including having an empty phone.)

An expert told The New York Times that the Tunick case would not necessarily criminalize that tactic, because travelers who erase before traveling would have "a strong argument that they did not act with the specific criminal intent to thwart an imminent search."

However, the prosecution is unprecedented and appears designed to discourage people from attempting to hide their electronic data from the CBP.

Legal Imbalance and Investigative Tactics

The case also highlights an important legal imbalance: The feds have the right to lie to you, but you do not have the right to lie to them.

According to FBI emails obtained by Tunick's lawyers, the government was investigating Tunick for terrorism over his involvement in the Defend the Atlanta Forest movement. But at the airport, CBP agents told Tunick that they were searching his phone for "child porn."

The reference never came up again in the investigation or case, leading Tunick's lawyers to call it "a pretext for a fishing expedition into Mr. Tunick's connections."

It may also have been an attempt to bolster the case for searching his phone. In 2019, the 9th Circuit Court of Appeals (which covers West Coast states) ruled that child sex abuse images are one of the few cases where digital data itself can count as "contraband" for the purposes of border searches.

Background on Defend the Atlanta Forest

Defend the Atlanta Forest, also known as Stop Cop City, aims to stop the construction of the Atlanta Public Safety Training Center—a planned campus for police and firefighters in Georgia—both on environmental grounds and because it encourages "police militarization," according to a movement website. Throughout 2022, some protesters physically attacked the construction site.