The US Department of Justice is attempting to prosecute an Atlanta resident in connection with the movement against the police training center known as Cop City because he had GrapheneOS on his phone, an open-source operating system that enables users to enter a passcode and wipe a phone clean.
The case, which had its first hearing on Monday, centers on a little-known US federal statute that makes it a crime to destroy property in an effort to prevent it from being seized.
Experts said it may be the first time the law has been aimed at the operating system, which works on Google Pixel phones, and expressed concerns about a technology created for privacy and security being used to criminalize protesters.
“It’s concerning – and sends the message that [GrapheneOS] is criminal by default,” said Christophe Boutry, a cybersecurity and surveillance expert. Boutry and Bill Buddington, senior staff technologist at the Electronic Frontier Foundation, both said they had not seen a similar case.
The defendant, Sam Tunick, was stopped for interrogation at Atlanta’s Hartsfield-Jackson airport on 24 January last year, after vacationing in the Dominican Republic. Unbeknown to him, federal authorities had put him on a terrorism watchlist because of his alleged association with the movement against Cop City.
Opposition to the $109m police training center, which opened last spring, came from a wide range of local and national organizations and protesters, centered on concerns around police militarization and clearing forests in an era of climate crisis. Atlanta police said the center was needed for “world-class” training and to attract new officers.
Several state attempts to prosecute Cop City protesters have foundered in the last several years, while this is the second recent federal effort, after the justice department announced another indictment last month.
The case began shortly after Tunick got off a plane in Atlanta, returning from a vacation spent whale-watching and enjoying nature on a friend’s boat. He did not know that a homeland security agent had circulated an email three hours before. The email contained Tunick’s name and photo and indicated he was being investigated for “suspected terrorism activities”. It was sent to agents on the Customs and Border Patrol tactical terrorism response team and an FBI Atlanta joint-terrorism taskforce officer.
When Tunick arrived in Atlanta, an agent took him to a room with a table, several chairs and a camera and microphone, and several agents began a “secondary inspection”. But all their questions were centered on child sexual abuse images.
These and other details were revealed in Monday’s hearing, held for a judge to hear testimony on a motion filed by Tunick’s federal public defenders, asking the court to suppress all evidence the agents obtained, including the erasure of the phone’s contents after he gave them a passcode, due to violations of his constitutional rights.
The interrogation, including the questions about child sexual abuse images, was “a pretext for a fishing expedition into Mr Tunick’s connections” to the movement against Cop City, according to the motion.
Tunick asked four times during the interrogation to speak with a lawyer, but was rebuffed each time, according to courtroom testimony. Additionally, the agents produced no warrant and did not read Tunick his rights.
But a justice department attorney and the airport agents testifying on Monday asserted Tunick was merely subjected to an everyday interrogation at an international airport, “looking for anything that’s prohibited”, as Larry Findley, a CBP officer, said.
Agent Findley and several others repeatedly asked Tunick to open his phone during the interrogation, telling him they would seize it if he did not. When he finally provided a passcode, “the screen went blank, flashed several times and the phone appeared to restart”, according to the motion.
The motion filed on Tunick’s behalf draws into focus the question of which constitutional rights apply and which ones are suspended at national borders, including international airports.
A judge’s decision on the motion will take at least until end of October.
Marlon Kautz, a member of the Atlanta Solidarity Fund, said: “We all have a right to secure our private data against unconstitutional searches. And we should – especially in a time of rising authoritarianism.”
Meanwhile, Boutry, who lives in France, said Tunick’s case was of a piece with tendencies in France and Spain, where authorities have been frustrated in attempts to gain access to the phones of journalists, lawyers and political opponents due to GrapheneOS.
In Catalonia, Spain, police have been profiling people with Google Pixel phones, assuming they have GrapheneOS installed and are drug dealers or gang members.
At the same time, Boutry said, the “main goal [of the operating system] is protection of privacy”.
“They’re our phones and the state can’t tell us how to use them.”
