GoKawiilA Georgia man was charged with a felony for allegedly wiping his phone while being questioned by Customs and Border Protection. Samuel Tunick had something in common with others who have had their devices searched at airports: He was an activist.
Unlike others who have had their phones seized with no explanation, Tunick was told that CBP needed to search his device to determine whether it contained child sexual abuse material, according to court filings. But Tunick’s attorneys argue that the search “was a pretext for a fishing expedition” into his connections with the Stop Cop City protests in Atlanta, in which dozens of people were charged under state RICO laws, which were later dismissed. A few protesters are still facing domestic terrorism and arson cases.
According to a motion to suppress evidence filed in March, Tunick didn’t consent to a search and repeatedly asked to speak to his attorney, but CBP officers told him they didn’t need a warrant to search his phone. Tunick ultimately gave the agents the password to his phone, but when they entered it, “the screen went blank, flashed several times and the phone appeared to restart,” court records say. Prosecutors allege that Tunick used the GrapheneOS “duress password” to wipe his phone, therefore deleting evidence.
Travelers’ devices have come under increased scrutiny since Donald Trump’s return to office — and the courts don’t agree on the legality of these warrantless searches. As a result, travelers have little clarity about how their rights apply at airports and other ports of entry. This gray area has allowed the Department of Homeland Security to target people perceived to be criticizing the president or the policies of his administration.
The confusion comes from a patchwork of federal rulings. The Court of Appeals for the Ninth Circuit ruled in United States v. Payne that law enforcement can forcibly unlock a person’s device with their fingerprint, facial recognition, or other biometric markers without running afoul of the Fifth Amendment’s protection against self-incrimination. But people can’t be forced to provide or enter their passcode, since it’s a form of “testimonial” evidence — information that requires a person to reveal their thoughts.
Those rulings, however, weren’t issued with airports in mind, and CBP claims that the Constitution doesn’t apply at ports of entry. Judicial opinion is mixed on that, too. The Court of Appeals for the Fourth Circuit — which oversees federal courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia — recently ruled that border agents don’t need a warrant to manually search travelers’ phones. (More advanced forensic searches, however, do require a warrant.) A separate appeals court whose jurisdiction includes Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico ruled that agents can conduct manual and forensic searches without a warrant. Meanwhile, a federal judge in New York’s Eastern District determined that CBP agents can’t conduct any device searches without a warrant.
Tunick’s case has some details in common with the one that precipitated the New York ruling. The New York case began with a criminal investigation of Kurbonali Sultanov, a naturalized citizen from Uzbekistan whose name triggered an alert on the Treasury Enforcement Communications System, which identified him as a potential purchaser of child sexual abuse material. In court, Sultanov said agents told him he had no choice but to unlock his phone. He was also questioned by agents with ICE’s Homeland Security Investigations, who read Sultanov his Miranda rights, which he said he understood “50/50,” before questioning him.
It’s unclear why CBP agents believed Tunick had child sexual abuse material on his phone. The two-page indictment filed in a Georgia federal court makes no mention of it, and CBP did not respond to The Verge’s request for comment.
“Under the Fourth Amendment, a warrant should be required, or at a bare minimum, specific suspicion that there is illegal digital contraband on the device,” Nathan Freed Wessler, the deputy director of ACLU’s Speech, Privacy, and Technology Project, told The Verge. “Agents should never be allowed to conduct warrantless searches on behalf of domestic law enforcement agents who just want to evade the normal Fourth Amendment requirement to get a warrant from a judge.”
The suspicion that immigration agents are surveilling activists has plenty of basis. In a lawsuit filed in Minnesota federal court, a Minneapolis labor organizer claimed that CBP was conducting “systematic” searches of activists’ devices, using counterterrorism as a pretext to keep tabs on the president’s left-wing critics. In March, more than a dozen members of a convoy that delivered humanitarian aid to Cuba had their phones seized at Miami International Airport.
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