Warrantless searches of electronic devices by Customs and Border Protection have tripled at the United States border in the last three years. The growth in searches puts press freedom at great risk.
The Committee to Protect Journalists (CPJ) and Reporters Without Borders (RSF) spoke with over two dozen national and international journalists, who were subjected to or threatened with searches. They published a report on the “wide powers” claimed by Customs and Border Protection (CBP) agents.
Around 1 million people cross U.S. borders every day. Less than 1 percent have their electronic devices searched. Nevertheless, electronic device searches went from 8,500 in 2015 to more than 30,000 in 2017.
CBP contends it must operate with a “border exception” when it comes to needing a warrant to search the electronic devices of individuals. It searches devices for threats to “national security,” which includes “classified information.” That directly threatens journalists and their confidential sources.
According to the report from CPJ and RSF, from 2006 to June 2018, 37 journalists were “stopped collectively for secondary screenings more than 110 times.” At least four journalists were questioned while leaving the country.
Nearly all of the 20 journalists, who said their devices were searched, had their devices taken out of sight.
In a handful of instances, journalists were able to demand agents call their newspaper or media organization’s legal counsel. They refused to consent to searches and agents backed off on conducting searches.
For example, “Maria Abi-Habib, an American and Lebanese reporter formerly with The Wall Street Journal, was stopped in Los Angeles while returning from Lebanon in 2016. Abi-Habib said she was able to prevent agents from searching her electronics by telling them to call the Journal’s legal counsel.”
But the vast majority of freelancers do not have this kind of legal support nor are they from establishment media organizations that may be able to deter warrantless searches by refusing to cooperate.
A British journalist, who was not named in the report because his employer did not authorize him to speak on the incident, said he was at Chicago O’Hare International Airport in 2017 when a border agent suggested they had the “authority to force the journalist’s finger on to his phone’s home button to unlock it if he refused to do so voluntarily.”
Obviously, this can be very intimidating. Several journalists, particularly international, indicated they did not know if they could refuse searches. International journalists worried it may “jeopardize their visa or immigration status.”
One revealing perspective was shared by an international freelance journalist, who has reported on Syria. The reporter declined to reveal their identity because they were concerned it may affect their visa.
“I treat the U.S. as almost a hostile state,” the reporter said. “You do or say what you have to to maintain that privilege because the financial cost of not being able to access the U.S. is huge.”
“When I’m in the states I’m very cautious of what I do or say. I don’t want to say anything about U.S. politics, or do interviews with people that the government may not like, which would put me in the sights of law enforcement more,” the reporter added.
The reporter has been stopped twice by CBP agents.
Multiple times agents have questioned journalists about what they are covering.
According to Canadian journalist Ed Ou, who was denied entry to the United States, border agents in 2016 asked him why he was interested in covering the protests against the Dakota Access pipeline at Standing Rock. One agent apparently said “covering a protest is not a valid reason to come into the country,” and agents were concerned about how he wanted to report on indigenous groups in America.
“Having worked in authoritarian countries with very little press freedoms for most of my career,” Ed Ou shared, “I was accustomed to securing all my electronics before traveling and crossing borders with the assumption that anything I had on me could be used against me or my sources.”
Still, Ou was not prepared to be threatened by a supposedly liberal democracy, which claims to protect press freedom as well as freedom of expression. He would not give agents passwords to his devices and was blocked from traveling.
One of the most troubling aspects of CBP’s warrantless border searches is how the information collected may be abused, and journalists already have a glaring example amidst the government’s sharp escalation in its war on leaks.
James Wolfe, director of security for the Senate intelligence committee, pled guilty to lying to the FBI about his interactions with reporters. He was in a relationship with New York Times reporter Ali Watkins. The Justice Department seized Watkins’ phone and email records.
Months before that happened, CBP agent Jeffrey Rambo improperly used his government computer to obtain “travel information” on Watkins. He pretended to be a potential source and met with Watkins in a bar in Washington, D.C. But quickly, it was apparent that he wanted to interrogate Watkins about her journalism, including her relationship with Wolfe.
Rambo pressured Watkins to become an informant, saying he’d disclose the then-unknown relationship between her and Wolfe to the Washington Post if she did not help him.
Officially, Rambo was not working on any leak investigations. In fact, he was a CBP agent from California, who traveled cross-country to intimidate, harass, and question Watkins.
Gabe Rottman, who is the director of technology and press freedom project at the Reporters Committee for Freedom of the Press (RCFP) described why this was alarming.
“If Rambo was freelancing and felt it appropriate to approach a national security reporter to question her aggressively about her sources, that’s a major problem. And, if Rambo was part of a concerted effort to uncover anonymous sources from journalists, that’s likewise of deep concern.”
Rottman added, “The leak investigation involving Watkins was the first time that the [President Donald Trump’s] administration has gone after a reporter and seized her records, making it all the more important to know the role Rambo and Customs and Border Protection played in the investigation.”
In September 2017, the American Civil Liberties Union and Electronic Frontier Foundation filed a lawsuit against warrantless searches of electronic devices by CBP.
The government sought to have the lawsuit dismissed, however, a federal judge refused to dismiss the case. It could not rule that the Fourth Amendment did not extend to the border “in some capacity.”
Several of the plaintiffs in the lawsuit are journalists. One of the plaintiffs, Zainab Merchant, was questioned in March 17 about a post on her blog about a prior experience crossing the border.
CBP agents coerced Merchant, who was in tears, into unlocking her phone and providing her password. They asked her about the purpose of her trip, as well as her religious affiliation.
Merchant wears a headscarf and was concerned the CBP would be able to violate her privacy by downloading photographs of her without her headscarf. She also believes an agent searched through her phone’s Facebook application and cycled through her “friends” page because it was open to that page when her phone was returned.