GrapheneOS said its smartphone operating system is "completely legal" and protected by the U.S. Constitution as the first known U.S. prosecution involving one of its features continues in court.
In a July 27 post, the privacy software project said it has no duty to weaken any of the protections built into the system. It also said any law that tried to force such a change would be unconstitutional.
The comments came in a thread about the case after a user asked whether GrapheneOS was refusing to cooperate with the Department of Homeland Security. The project said it could not help in that way.
Once key material has been wiped, "there's nothing we can do to assist with it," GrapheneOS wrote. It added that bypassing encryption is "not possible" by design.
The project also said: "Creating and using GrapheneOS is strongly protected by the US constitution. Laws attempting to make it illegal or require weakening the security would be unconstitutional."
Case centers on a border search and a wiped phone
Atlanta activist Samuel Tunick has been charged under 18 U.S.C. § 2232. Prosecutors allege that during a warrantless border search in January 2025, Tunick entered a duress code that wiped his Google Pixel.
Tunick has pleaded not guilty. He faces up to five years in federal prison if convicted. A judge is expected to rule on his motion to suppress no earlier than the end of October.
Tunick says the prosecution is meant to intimidate
Tunick told 404 Media that the case is aimed at discouraging other people from protecting their information. He said the charges are "meant to intimidate people against protecting their data," and that the government "hopes to set a precedent that no one has the right to privacy."
He also described what he said was a year of surveillance before the indictment, including a tracker placed on his car and subpoenas for his phone records and Gmail account.
404 Media's related report carried the headline: "A Man Gave Border Agents His Phone Passcode. It Wiped Everything. Now He's Facing Federal Charges."
Defense says agents could have sought a warrant
Matthew Dodge, Tunick's federal public defender, said DHS officers called ahead to the airport and asked that Tunick be stopped and that his phone be searched.
Dodge said agents searched Tunick's bags and his person over his objections and found nothing. He said they could have sought a warrant.
"They didn't do that," Dodge said.
Dodge also said he found one other prosecution under the same statute, tied to a drug trafficking investigation. He called the charge "extraordinarily rare."
Government says device searches are rare
A spokesperson for U.S. Customs and Border Protection told 404 Media that all travelers are subject to inspection. The spokesperson said searches of electronic devices are rare and are decided case by case, with travel history and law enforcement alerts taken into account.
The U.S. Attorney's Office declined to comment.
GrapheneOS says the feature was built for this scenario
GrapheneOS added the duress PIN in June 2024. The project said it was introduced for exactly the kind of situation Tunick described. Founder Daniel Micay pointed to a published overview explaining the system's defenses against data extraction.
In another post, GrapheneOS said the secure element in the Google Pixel phones it recommends only updates firmware after the owner authenticates. The project described that as a safeguard against "state coercion."