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By Suzanne Blake
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A new federal prosecution is drawing attention to one of the most controversial powers exercised by U.S. border authorities: the ability to search travelers' phones without a warrant.
Atlanta resident Samuel Tunick was charged after prosecutors alleged he provided U.S. Customs and Border Protection (CBP) agents with a passcode that wiped the contents of his Google Pixel phone during an airport inspection.
Now the unusual prosecution is raising questions about what rights U.S. citizens have when border agents ask to search electronic devices and whether using privacy-focused security features can itself lead to criminal liability.
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Why It Matters
Americans carry vast amounts of personal information on their phones, from private messages and photos to location histories, work documents, and financial records.
Yet courts have long recognized a "border search exception" that grants customs officials broader search powers at ports of entry than law enforcement typically possesses within the United States. The Tunick case could become a significant test of those powers. If the prosecution is successful, it could chill the use of security tools designed to protect citizens.
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What To Know
Tunick was returning to Atlanta from the Dominican Republic in January 2025 when he was stopped by CBP officers for secondary inspection at Hartsfield-Jackson Atlanta International Airport. Authorities allegedly requested access to his phone. When a passcode was entered, the device reportedly restarted, and its contents were erased.
Prosecutors subsequently charged Tunick under 18 U.S.C. § 2232(a), a federal law that makes it a crime to destroy or dispose of property to prevent authorities from lawfully taking custody of it. The charge carries a potential prison sentence of up to five years.
Tunick has pleaded not guilty, but now a larger debate has centered around GrapheneOS, a privacy-focused mobile operating system available on Google Pixel devices.
One of its features allows users to create a "duress password" that wipes the device if entered instead of the regular unlock code. The feature is intended for people who fear being compelled to unlock their devices under pressure.
Tunick's attorneys argue the search itself was unlawful and have sought to suppress evidence in the case. They say he was denied access to an attorney, was not advised of his rights and was questioned about matters unrelated to border security.
However, federal officials dispute this, describing the encounter as a routine border inspection.
“I have not seen this before, though I've discussed the potential scenario with activists and journalists over the years," Runa Sandvik, founder of security consultancy Granitt, told Yahoo News.
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Can CBP Search a U.S. Citizen's Phone?
In many circumstances, CBP can search a U.S. citizen’s phone.
CBP has said that all travelers crossing the U.S. border are subject to inspection and that electronic devices are no different from other belongings being brought into the country. The agency said phone and laptop searches are conducted only in a tiny fraction of international arrivals, with fewer than 0.01 percent of travelers subject to device searches in fiscal year 2025.
"All travelers are subject to inspection to ensure compliance with U.S. laws. These inspections, including questioning and the rare search of electronic devices, are conducted on a case-by-case basis, taking into account factors such as travel history and law enforcement alerts," a CBP spokesperson told Newsweek.
"CBP has statutory authority to conduct border searches of electronic devices for all persons entering or departing the United States, regardless of citizenship, to enforce laws addressing terrorism, child exploitation, drug- and human-smuggling, visa fraud, and national security threats. The border search will only include an examination of information that is present on the device at the time it is presented for inspection."
Under current CBP policy, officers can conduct a basic search of a device without a warrant. This generally involves manually reviewing information stored locally on a phone, laptop or tablet.
More intrusive advanced searches, which may involve connecting the device to external equipment or forensic tools, would require reasonable suspicion of a violation of the law or a national security concern, as well as supervisory approval.
"The physical device itself can indeed be seized by law enforcement. It's not 'speech' in the way that your words are. The speech part, the Fifth Amendment protection against self-incrimination, comes into play when they try to compel you to unlock it or provide a passcode, which is essentially testimonial," Sean Callagy, an attorney and co-founder of ACTi AI, told Newsweek.
"That's where the legal battle is, and it's a complex, evolving area, with courts still wrestling with it."
What Rights Do U.S. Citizens Have?
U.S. citizens have a crucial protection that noncitizens do not: they cannot generally be denied reentry simply for refusing to unlock a device. That does not mean refusing has no consequences, however.
According to the most recent legal guidance, agents may seize a device, subject a traveler to additional questioning or hold electronics for further examination if the traveler declines to provide access. Any challenge to the legality of the search would typically occur later in court.
"Your digital life isn't a diary you get to burn the second someone knocks on the door. Attempting to erase digital footprints during an investigation isn't just a misstep," Callagy said. "It's a deliberate act that transforms a potential inquiry into a clear-cut case of obstruction or evidence tampering, a charge that often carries more weight than the original offense."
Multiple privacy organizations, including the ACLU and Electronic Frontier Foundation, have argued that modern smartphones contain such extensive personal information that they deserve stronger constitutional protection than traditional luggage searches.
“The government has long claimed that Fourth Amendment protections prohibiting warrantless searches don’t apply at the border. The American Civil Liberties Union takes issue with this position generally, especially when it comes to electronic devices like smartphones and laptops,” the ACLU wrote on its website.
“Our smartphones store detailed accounts of our conversations, professional lives, whereabouts, and web-browsing habits. They paint a far more detailed picture of our private lives than, say, a piece of luggage.”
What Privacy Experts Advise
Privacy experts generally recommend planning ahead rather than making decisions under pressure at an airport.
The rules shift dramatically at the border, Callagy said. CBP can seize and search your physical device without a warrant or probable cause, much like it does with your luggage.
"The critical distinction lies in the content: while they can take the device, compelling you to unlock it or provide a passcode engages Fifth Amendment self-incrimination protections, though this is a rapidly evolving area of law, and these powers must still be exercised without discriminatory profiling," Callagy said.
"So, if you're ever confronted by law enforcement, whether at the border or elsewhere, and asked to provide or unlock your device, remember this: your silence is not an admission of guilt, it's a shield. Do not consent to searches, do not offer explanations, and do not unlock anything until your attorney is present because the only thing more costly than a seized device is a compromised right."
Generally, travelers carrying sensitive information should minimize the data stored on devices before crossing borders. They should also understand what information is accessible from the cloud versus stored locally.
However, the Tunick case has sparked a new legal question: whether activating a security feature that erases data could be interpreted by prosecutors as destruction of evidence if authorities were attempting to seize the device.
“It’s concerning – and sends the message that [GrapheneOS] is criminal by default,” Christophe Boutry, a cybersecurity and surveillance expert, told The Guardian.
So far, there has not been any well-known U.S. criminal prosecution centered on the use of a phone's duress-password feature.
Contact Newsweek editors on this story: Jason Lemon, Sam Wilson, Edward T. Cummins.
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