When Can You Legally Wipe Your iPhone? A New Case Tests the Limits
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A federal criminal indictment out of the Northern District of Georgia is sparking an important and fascinating privacy debate. The case involves Samuel Tunick, an activist in the Stop Cop City movement, which unsuccessfully opposed the development of an 85-acre Atlanta Public Safety Training Center for police and firefighters.
Tunick was moved to a secondary inspection by Customs and Border Protection at Atlanta’s Hartsfield-Jackson International Airport upon returning from a trip to the Dominican Republic and asked to unlock his phone, a Google Pixel. He gave agents his passcode, but it wasn’t the real one. His phone was running GrapheneOS, which includes a duress code feature. When agents entered the code, the phone was immediately wiped and reset.
Tunick was charged under Title 18, United States Code, Section 2232(a), which makes it a federal felony to knowingly destroy, damage, transfer, or dispose of property — or attempt to do so — before, during, or after an authorized government search or seizure, with the specific intent to prevent or impair the government from taking or holding that property.
Although Tunick didn’t have an iPhone, Apple’s device has its own version of a duress wipe, which is why this story transcends Apple and Android. The iPhone has a self-destruct feature that will wipe or lock the device down after 10 incorrect password attempts. An iPhone can also be erased remotely via the Find My app on another Apple device linked to the same iCloud account. Finally, Apple’s Stolen Device Protection also preserves your ability to wipe your iPhone from Find My even if someone else has it and knows the passcode.
Under the Fifth Amendment protecting you from self-incrimination, Border agents can’t force you to give access to your phone. As CNET reports, Tunick’s lawyer argued he was not given cause for being detained, was not under arrest or read his rights, and was denied access to an attorney upon request.
However, border agents can, under the “border search exception” to the Fourth Amendment, which otherwise protects against unreasonable search and seizure, perform basic or advanced forensic searches of electronic devices depending upon their level of suspicion. They can seize your device, but not force you to unlock it or force you to answer any questions. But they may try to coerce you into doing so.
Tunick’s prosecution is entering new territory. While his legal team is challenging whether the search itself was lawful, the privacy issue at the heart of the case is whether or not using a built-in security feature during that search can itself be a federal crime. Certainly, wiping a phone in front of a federal agent will look different to a judge or prosecutor than wiping it because someone stole it. Tunick would have been better off leaving his phone in airplane mode or just not unlocking it.
This case isn’t about one operating system. Rather, the question is whether protecting your personal data can be treated as evidence you had something to hide, if you aren’t under arrest or investigation. It’s important to understand your rights. We’ll keep an eye on how this case plays out.
