The Wipe Trap: Why Using Privacy Tools Might Get You Prosecuted

A legal minefield has opened between your right to digital privacy and the government's expanding reach into activist communications. Here's what you need to know—and how to protect yourself.

The Case That Changed Everything

Samuel Tunick is facing up to five years in federal prison. His alleged crime? Typing in a duress password that wiped his GrapheneOS phone before officers could search it.

He wasn’t charged with drugs, weapons, or violence. He participated in the Stop Cop City movement in Atlanta, and the government’s theory is that destroying potential evidence—even on your own device—constitutes obstruction of justice.

According to Tunick’s interview with 404 Media, his defense team believes this prosecution aims to “set a precedent that no one has the right to privacy.” Whether that’s accurate or not, the effect is clear: using extreme privacy tools is becoming legally hazardous.

For activists, journalists, and anyone concerned about government surveillance, this raises a terrifying question: what’s the safe middle ground between total exposure and criminal prosecution?

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The Legal Landscape: Progress and Fractures

Before diving into protection strategies, we need to understand where the law actually stands.

Fourth Amendment Protections (The Good News)

Over the past decade, the Supreme Court has built a surprisingly robust framework protecting digital privacy:

YearCaseProtection Established1967Katz v. United States”Reasonable expectation of privacy” standard established2014Riley v. CaliforniaPolice need warrant to search cell phone contents2018Carpenter v. United StatesWarrant required for historical location data2026Chatrie v. United StatesGeofence data protected by Fourth Amendment

According to EPIC and SCOTUSblog, these rulings establish that smartphones contain “the privacies of life” and demand constitutional protections that go beyond physical searches. The trend line looks promising—if you’re reading this in 2026, Chatrie just reinforced that your location history and digital footprint are protected.

Fifth Amendment Protection (The Messy Part)

Here’s where things get complicated. The right against compelled self-incrimination exists—but it’s fractured across jurisdictions:

Pro-Privacy Courts:

• U.S. v. Doe (Eleventh Circuit): Government can’t force password disclosure unless it proves you possess the password AND that incriminating evidence exists on the device

• U.S. v. Brown (D.C. Circuit, 2025): Compelling biometric unlock (fingerprint/face) is testimonial and violates Fifth Amendment

Anti-Privacy Courts:

• State v. Diamond (Minnesota, 2018): Biometric unlock treated as physical evidence, not testimonial

• Commonwealth v. Baust (Virginia, 2014): Fingerprints don’t require “expression of contents of one’s mind”

Result: Your constitutional protection against forced decryption depends entirely on what court system you’re in. As Lawfare noted, this circuit split leaves fundamental rights uncertain.

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The Chilling Effect Mechanism

What does this mean for regular people? Three cascading effects:

1. Individual Calculus Shifts

You now face a dangerous binary:

• No privacy tools: Your entire digital life is accessible during any encounter

• Extreme privacy tools: Using them may itself be prosecuted as obstruction

There’s no “safe” zone.

2. Movement-Level Deterrence

As Tunick observed in the 404 Media interview: “I hope people understand that the charges against me are meant to intimidate people against protecting their data and their privacy.”

When one person’s prosecution becomes a warning to all activists, the deterrent spreads even to those never charged. This is the definition of a chilling effect.

3. Developer Pressure

Legal risk flows upstream. If duress passwords and wipe-on-lock features become associated with criminal obstruction, will developers continue building them? Will app stores allow them? Technology responds to market forces—including legal markets.

The Critical Insightcritical

The government doesn’t need to ban privacy tools outright. By charging users for exercising privacy features, they achieve the same deterrent effect without needing to win legislative battles or constitutional challenges.

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The Middle Ground: Legally Safe(er) Digital Privacy

So what should you do? Here’s a tiered approach based on current legal understanding. DISCLAIMER: I’m not a lawyer. This is not legal advice. Consult qualified counsel for your specific situation.

Tier 1: Universal Best Practices (Legally Safe)

These practices are widely accepted and unlikely to trigger obstruction charges:

✓ Use Full Disk Encryption

• Enable encryption on all devices (iPhone, Android, laptop)

• This is standard functionality, not evasion

• Riley and Carpenter protect encrypted content from warrantless search

✓ Use Strong Passcodes (Not Short PINs)

• Long alphanumeric passwords (>12 characters ideal)

• Brute-force resistant = better security

• No legal downside—you’re simply setting a strong lock

✓ Regular Backups

• Encrypted backups to secure locations

• Demonstrates you’re preserving, not destroying, data

• Can counter “consciousness of guilt” narratives

✓ Use End-to-End Encrypted Communication

• Signal, Wire, Session for messaging

• Proton Mail for email

• These tools are designed for journalists and whistleblowers, not criminals

Tier 2: Advanced Protection (Some Risk)

These increase security but carry unknown legal exposure:

⚠ Two-Factor Authentication

• Use hardware keys (YubiKey) instead of SMS codes

• Reduces SIM-swapping vulnerability

• No known legal issues, but untested in court

⚠ Encrypted Messaging Channels

• Dedicated devices for activist coordination

• Separate numbers for different circles of trust

• Potentially flagged as “conspiratorial” but standard journalist practice

⚠ Airplane Mode During Arrest

• Prevents remote wipe commands or tracking

• Does NOT prevent physical search once arrested

• Minimal legal risk if done transparently

Tier 3: High-Risk Strategies (Avoid Unless Necessary)

These may be effective technically but legally hazardous:

✗ Duress Passwords That Wipe Data

• This is what got Tunick charged

• Could be interpreted as obstruction regardless of intent

• Only use if you’ve consulted counsel

✗ Intentional Data Destruction

• Deleting files after law enforcement arrives = clear obstruction risk

• Deleting before arrest = still risky depending on timing/context

• The line between privacy and destruction is prosecutorial discretion

✗ “Burner” Devices Without Documentation

• Disposable phones raise suspicion of conspiracy

• Legitimate reasons exist (journalist sources, abuse victims)

• Document legitimate purpose if challenged

✗ Physical Tampering with Seized Equipment

• Damaging devices that belong to law enforcement is definitely criminal

• Even scratching a screen could be assault/property damage

• Never touch seized equipment

The Golden Rules

Encryption is protected. Obstruction is not. The key distinction: preserve data through encryption; never destroy it once law enforcement has reason to investigate. Document legitimate privacy reasons when possible.

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Practical Checklist for Activists

Before protests, interviews, or demonstrations:

□ Enable full disk encryption on all devices
□ Set strong alphanumeric passcodes (>12 characters)
□ Remove unnecessary sensitive data beforehand (not after arrest)
□ Have emergency contacts ready to bail you out quickly
□ Know your right to remain silent (Miranda applies)
□ Carry physical copies of important documents (encrypted USB backup at home)
□ Don't resist physical search, but invoke Fifth Amendment if asked for passcode
□ Get legal representation before answering substantive questions
□ Document encounters with law enforcement (audio recording where legal)

What to Say During Arrest

Based on Fifth Amendment jurisprudence and legal advisories from the EFF and ACLU:

1. “I am invoking my right to remain silent.” — Clear, unambiguous

2. “I want an attorney.” — Must stop questioning until counsel arrives

3. If asked for a passcode: “I’m asserting my Fifth Amendment privilege against self-incrimination.”

Note: The Fifth Amendment only protects you if the act is “testimonial”—revealing knowledge. Physical acts like fingerprint scanning have uncertain protection depending on jurisdiction (U.S. v. Brown says it’s protected, but other courts disagree).

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The Larger Question: Who Decides Privacy’s Boundaries?

Here’s what keeps me up at night: we’re learning what our rights are through prosecution.

Riley and Carpenter came after decades of government overreach. Chatrie followed similar patterns. The Fifth Amendment split exists because courts are reacting to government tactics rather than establishing clear frameworks in advance.

This means your rights are shaped not by principle but by who gets charged, who wins in court, and which judges sit on appellate panels. That’s not a constitutional system—it’s a legal gauntlet.

Tunick’s case forces a confrontation that should have happened years ago. Is the duress password feature an exercise of privacy rights, or is it obstruction? The answer should be clear—but it’s being decided through criminal prosecutions rather than democratic deliberation or constitutional interpretation.

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What You Can Do

Short-term:

• Implement the Tier 1 practices above

• Share this information with people in your networks

• Donate to organizations defending digital privacy (ACLU, EFF, Electronic Frontier Foundation)

Long-term:

• Advocate for legislation clarifying digital privacy rights

• Push for laws that explicitly protect duress passwords as privacy features

• Vote for candidates with clear stances on digital civil liberties

Media-wise:

• Share stories like Tunick’s through channels like 404 Media

• Support independent journalism covering surveillance issues

• Consider podcast collaborations on this theme

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Final Thoughts

The technology to protect ourselves exists. The constitutional principles are in place. What’s missing is certainty—and certainty comes only through tested legal precedents and honest political will.

Until then, we navigate a maze where our best privacy tools might become evidence against us. That’s not how a democracy treats its citizens’ rights.

Stay encrypted, stay informed, and keep asking the hard questions.

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About the Author: night is a podcaster and privacy activist running two shows: Big Brother’s Earpiece (digital surveillance and government monitoring) and Butterfly Bureau (Epstein files and survivor advocacy). Learn more at [your-substack-url].

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Sources:

• https://www.404media.co/the-government-hopes-to-set-a-precedent-an-interview-with-the-man-charged-for-allegedly-wiping-his-grapheneos-phone/

• Supreme Court opinions: Riley v. California, Carpenter v. United States, Chatrie v. United States

• Lawfare: Fifth Amendment decryption analysis

• EPIC: Fourth Amendment resources

• ACLU Massachusetts: Carpenter case documentation

• SCOTUSBlog: Chatrie coverage

“The government doesn’t need to ban privacy tools outright. By charging users for exercising privacy features, they achieve the same deterrent effect without winning legislative battles. When encryption becomes a shield against investigation and data deletion becomes obstruction, we’ve lost the right to choose whether to remain anonymous.”

— night, Big Brother’s Earpiece