I was only supposed to be in Miami for the briefest of layovers. I was en route to San Francisco from São Paulo in Brazil, where I had participated in the NETMundial Conference on Internet governance along with hundreds of members of civil society, technology executives, journalists, and government officials. It was going to be a tight connection even if things had gone smoothly, but I was not free to leave. Someone wanted to ask me some questions, noted the U.S. Customs and Border Protection (CBP) officer holding my well-worn passport. Go stand against that wall, he told me, dropping my passport into a box attached to his booth: someone will be by to collect you.
So I sat, and waited, in a Department of Homeland Security holding room in Miami International Airport. A far cry from a jail cell, it felt more like a startlingly modern Department of Motor Vehicles office. The room was clean, brightly lit, and bedecked with DHS seals that reminded me of the bunting so often seen in American small towns around the Fourth of July. In the corner, a large television showing CNN blazed silently. A Pepsi machine hummed quietly in the corner.
Finally I was called to an interrogation room: “King Joffrey!” It was about 7:40 a.m., 15 minutes before my connecting flight was due to depart. Surely that was a mispronunciation, I thought, not an intentional reference. But it sure sounded well-enunciated.
“So,” my interrogating officer asked me, genially, “do you watch ‘Game of Thrones?’” “I don’t have a whole lot of time to watch TV,” I replied. Mindful of a statute that makes it a felony to utter a false statement to a federal law enforcement officer, I added, “I do watch ‘The Wire.'” My interrogator laughed. He asked what I do for a living, then handed me my passport. That was it: no search, no real interrogation; just a gratuitously missed connection, which airline personnel heroically did their best to fix.
While the experience could not have seemed more pointless, it could have been much worse.
Brandon Jourdan, an American independent documentary filmmaker, says his experiences at the U.S. border became unbearable. “I’ve completely changed the way that I work,” Jourdan told the Committee to Protect Journalists.
Between 2007 and 2012, Jourdan says, he was stopped nine times–including twice on his way in to the U.S., and once while on a bus. On one occasion, Jourdan says, he was held for as long as nine hours, and his electronics and papers have been copied. On two occasions, he told CPJ, he was interrogated not by uniformed CBP personnel, but by men who refused to identify themselves. Jourdan says that on only one occasion was he asked specific questions.
Ahmed Shihab-Eldin, by contrast, said that CBP at times seemed familiar with his work. “They always seemed to bring up work,” Shihab-Eldin told CPJ. “[W]hy were you traveling? Why were you attending the conference? What kind of a journalist are you? What kind of reporting do you do?” In the latest incident, on October 23, he was asked directly if he was a journalist and whether he worked for Huffington Post. He left his position there earlier this year.
The Emmy-nominated journalist and Adjunct Assistant Professor at the Columbia School of Journalism, who describes himself as “Palestinian by blood, American by birth, Kuwaiti by nationality” says he is detained nearly every time he crosses the border. “In the past, I would say, six to nine months–it’s hard for me to be sure exactly because I travel a lot for work–I can count four of five consecutive times,” he told CPJ. Shihab-Eldin says his phone was seized during two of these incidents. More than once, Shihab-Eldin told CPJ, officers informed him he had been taken off a list following a redress procedure, but was later put back on. “Something happens in the world that lands you back on the list,” Shihab-Eldin said one CBP officer told him, adding, “I find that to be useless in terms of an explanation.”
The U.S. government has historically enjoyed broad authority to detain people, baggage, and merchandise at its borders, which includes international airports. These powers are due in part to the so-called “border search exception” to the Fourth Amendment’s warrant requirement, which allows for the suspicionless search and seizure of items coming into the U.S. In 2008, the Bush administration issued new directives clarifying that it is DHS policy to search and seize electronic items without suspicion. And journalists continued to report facing questioning and searches when they traveled.
“Do journalists need to be worried about getting harassed at the border and getting their stuff searched at the border, whether it’s their backpack or their electronic devices? Hell yeah,” Electronic Frontier Foundation’s staff attorney Hanni Fakhoury, an expert on individuals’ rights at the U.S. border, told CPJ.
“If you’re a journalist that works in any type of capacity writing and investigating the government… whether that’s in the U.S. or abroad, you’ve got to be careful, because the border is an easy place for the government to make a pretextual search of you without having to necessarily justify their reasons for doing so,” said Fakhoury, who spent years litigating border-related investigations when he worked as a federal public defender in Southern California.
One journalist who came under regular scrutiny is American filmmaker Laura Poitras who, along with Glenn Greenwald and others, won the 2014 Pulitzer Prize for breaking the story of mass spying by the National Security Agency. Between 2006 and 2012, Poitras estimates she was stopped approximately 40 times while crossing the U.S. border, and her electronics have been seized and searched. “[N]ow, after six years of being stopped and questioned every time I traveled… even though I knew it was going to happen I would still get nervous,” Poitras told CPJ Americas Research Associate Sara Rafsky in an interview about her new film, “CITIZENFOUR,” earlier this month. “I still never travel without thinking it’s possible. I never bring any notes or anything sensitive, and I’m careful,” she said.
The harassment faced by Poitras and Jourdan appeared to abate only after prominent individuals intervened on their behalf or they went public, they said. But the calculus may be very different for international journalists who, unlike their American counterparts, can more easily be barred from the country.
Other American journalists have found themselves targeted less severely, for equally opaque reasons. National Public Radio producer Sarah Abdurrahman was reportedly held for six hours without explanation in 2013. And C.J. Chivers and Mac William Bishop of The New York Times filed a lawsuit against DHS after being questioned on their way to Syria in 2013. Bishop was also stopped on his way back in. “We want to be sure that our journalists are not being targeted by DHS for special scrutiny or having their activities monitored by the government when they are engaged in reporting,” David McCraw, Vice President and Assistant General Counsel of The New York Times Company, wrote in a statement reported by Politico. “DHS has failed to provide adequate responses to our [Freedom of Information Act] requests seeking whatever information DHS employees were working from in initiating the questioning and whatever information they gathered in the questioning. That led to this lawsuit.”
Although CBP declined to speak on the record for this story or to comment on the treatment described by journalists, an undated statement provided by its spokesman, Jaime Ruiz, states: “It is not the intent of CBP to subject travelers to unwarranted scrutiny … CBP officers use diverse factors to refer individuals for targeted examinations and there are instances when our best judgments prove to be unfounded.”
The issue reaches beyond physical borders as well. Earlier this year, the U.S. government argued in court papers that the border search exception supports NSA spying.
The apparent abuse of journalists at the border, and the danger of pervasive surveillance to journalism, helped foment CPJ’s Right to Report in the Digital Age campaign. In addition to checking the Justice Department, the campaign seeks to rein in U.S. surveillance and impose meaningful constraints on federal law enforcement officials’ discretion at U.S. border crossings.
There is reason to hope that things may change. Last year, the Ninth Circuit Court of Appeals held in U.S. v. Cotterman that a non-routine, forensic search of laptop at the border requires at least reasonable suspicion of criminal activity. Perhaps more significant, this summer the United States Supreme Court ruled in Riley v. California that warrantless, suspicionless searches of arrestees does not extend to electronic devices such as smartphones. The court wrote: “Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house,” which for 200 years the court has assumed to be the most sacrosanct of private spaces.
Fakhoury told CPJ that Riley and Cotterman are potential game-changers. “[O]ld cases involving older technologies don’t necessarily apply to newer technologies. Now you have to assess the technology for what it’s revealing; you can’t just blindly apply old precedent,” he said.
Catherine Crump, Associate Director of the Samuelson Law, Technology and Public Policy Clinic at UC Berkeley School of Law, agrees. “After the Supreme Court’s decision in Riley, I think there is significant doubt as to whether the government’s policy of conducting suspicionless searches of cell phones and laptops at the international border is constitutional,” Crump told CPJ.
Crump, formerly of the American Civil Liberties Union’s Speech, Privacy and Technology Project, represented the National Press Photographers Association and other plaintiffs in a 2010 lawsuit against CBP over its border search policies. Though unsuccessful, the courts’ rulings in Cotterman and Riley may give new life to similar challenges. “In Riley, the Supreme Court got it,” Crump said. “That idea–that electronic information is uniquely sensitive–is equally true whether the phone is taken from you because you were arrested or because the phone is taken from you when you’re at the border.” For now, Crump told CPJ, “Journalists who want to keep their materials safe need to use technological protection measures, such as encryption, rather than relying on the law.”
It may be the case that journalists’ travel patterns and data flows just happen to trigger alerts within federal databases. But the experiences of the journalists CPJ interviewed make it clear that CBP’s broad discretion is having a negative impact on the free flow of news.
“This is what I do for a living,” Jourdan told CPJ, adding that his published work–which can easily be found on the Internet–is more interesting than outtakes he might have with him. “There’s no real reason for this, unless it’s either (a) a form of harassment, or (b) data mining.”
As for me, I can’t tell you why I was detained. There are more questions than answers: was it a case of mistaken identity? Did I contact someone of interest to the intelligence community in the course of my reporting for CPJ? Though I have flown internationally only once since, a TSA agent asked whether I watched “Game of Thrones,” leading me to wonder whether the joke has now made its way into a federal database. But I take steps to secure my devices, and my travel generally involves conferences, not combat journalism.
Many journalists working abroad often lack such luxuries. “[T]here’s very little separation between a journalist and an agent of the state if the government can just take all your information and use it,” Jourdan told CPJ. “This jeopardizes your safety when you’re in conflict zones. This jeopardizes your integrity as a journalist.”
Shihab-Eldin sees the safety issue in broader terms and laments how the system has evolved since 9/11. “[T]his experience has led me to believe all the more so that it’s not an efficient system, and it is more arbitrary than it needs to be,” he told CPJ.
The high stakes for journalists, the apparent irrationality of border officials’ applied discretion, and the possibility that the courts will act on their own should prompt the Obama administration to work with Congress to place CBP under better oversight. Representatives Loretta Sanchez and Eliot Engel have previously introduced bills to rein in the agency. Surely a reasonable suspicion standard, and other enhanced procedures for protecting journalistic work, should not be controversial.
In other words, it is time to set some reasonable boundaries.
San Francisco-based CPJ Internet Advocacy Coordinator Geoffrey King works to protect the digital rights of journalists worldwide. A constitutional lawyer by training, King also teaches courses on digital privacy law, as well as the intersection of media and social change, both at UC Berkeley. Follow him on Twitter at @CPJInternet. His public GPG encryption key can be found here.