DHS uses email intercepts to question US citizen about her sex life
At first blush, a lawsuit filed last week by the ACLU on behalf of a sociology professor at Indiana University wrongly detained by U.S. Customs and Border Protection seems to be about whether CBP is exceeding the limitations on its police powers, and detaining US citizens for purposes unrelated to customs and borders.
That’s bad, but unsurprising in light of the history of abuse of limited administrative search powers as a pretext for unrelated police purposes by CBP and other DHS components, notably the TSA.
What’s more unusual, however, is the complaint that the DHS is using email messages, presumably obtained from the NSA (unless the DHS has some email interception program of its own) as the basis for detention and interrogation of US citizens who aren’t trying to travel or ship any goods across US borders.
And what was the subject of this warrantless custodial interrogation of a non-traveling US citizen by armed “Customs and Border Protection” officers, based on email intercepts? Her sex life.
No, we’re not making this up.
Professor Christine Von Der Haar of Indiana University tells the story in her complaint, in an interview with the Bloomington Herald-Times in 2012 at the time of the bizarre CBP doings that led to her lawsuit, and in a video interview with the Indianapolis Star last week when the lawsuit was filed.
A few years ago, Dr. Von Der Haar, a US citizen, reconnected online with Dimitris Papatheodoropoulos, a Greek freelance transport and logistics manager and consultant who she had been friends with as a teenager, 40 years earlier, at an international school they both attended in Switzerland. After a year’s exchange of email, some of which Dr. Von Der Haar says was “flirtatious and romantic in nature”, Mr. Papatheodoropoulos arranged for a visit to Dr. Von Der Haar in Bloomington during her summer break from university teaching.
Von Der Haar believes her friend is a victim of a cultural misunderstanding. His emails signed off “I love you. I miss you. I kiss you.” Marriage, though, was beyond the pale for two adults in their mid-50s who hadn’t seen each other for decades, they say.
Sure, his language is flowery, but Von Der Haar laughs about it, slightly embarrassed: “We’re silly. He’s a Greek man. What can I say?.”
Mr. Papatheodoropoulos obtained a 10-year, multiple entry B1/B2 business and tourism visa to the US, allowing him to consult with business associates and negotiate contracts as well as visit friends. Since he works as a freelancer, and wasn’t sure how long he would be staying in the US, he shipped a computer and some other electronic equipment by air freight, but removed the hard drive with his data and carried it with him.
On arrival, Mr. Papatheodoropoulos cleared US customs and immigration and was admitted to the US without incident. But when Dr. Von Der Haar took him back to the Indianapolis airport a few days later to pick up the items he had shipped by air freight, they were referred to the CBP office at the airport.
According to Dr. Von Der Haar’s complaint, armed CBP officers detained both her and Mr. Papatheodoropoulos, took them into separate rooms, and stood blocking the exit door while they interrogated Dr. Von Der Haar about, “the nature of her relationship with Mr. Papatheodoropoulos … the contents of email messages that Dr. Von Der Haar and Mr. Papatheodoropoulos had sent each other … [and] if she and Mr. Papatheodoropoulos were having sexual relations.”
Given that Mr. Papatheodoropoulos had retained his hard drive that contained the emails, the only way that the Customs and Border Protection Agents could have reviewed the emails is for someone to have surreptitiously monitored the communications between Dr. Von Der Haar and Mr. Papatheodoropoulos and reported those communications to the agents questioning her. Defendant Lieba admitted that employees of the United States had read email communications between Dr. Von Der Haar and Mr. Papatheodoropoulos.
Dr. Von Der Haar was taken into the back room of the CBP office for questioning twice, for a total of about half an hour, while Mr. Papatheodoropoulos was questioned for “approximately 4 1/2 – 5 hours” before he emerged and was allowed to leave. His Greek passport (property of the Greek government) was confiscated without warrant, leaving him unable to leave the US even had he decided to cut his visit short, and he was “served with notice that a proceeding was initiated against him for removal from the United States” on the basis that:
You obtained your B1/B2 visa by misrepresenting your intentions to come to the United States to wit; It is your intention to immigrate to the United States, you abandoned your foreign residence, you intend to overstay your admission to the United States.
“None of this was true” according to the complaint. Mr. Papatheodoropoulos requested an expedited trial on these allegations, but “the removal action did not proceed. His passport was returned to him and he left the United States at the end of August of 2012 and has not returned.”
What are we to make of this episode?
First, CBP officers grossly exceeded their jurisdiction. Dr. Dr. Von Der Haar’s US citizenship was never questioned; she wasn’t trying to enter, leave, or ship and goods in or out of the country; and she was never accused of any crime. In general, immigration (as distinct from customs) offenses are handled by Immigration and Customs Enforcement (ICE) and the Border Patrol, not CBP. We’re curious what basis CBP will claim for its officers’ authority to detain and interrogate Dr. Dr. Von Der Haar or obtain her email.
Second, unless this incident has exposed some previously unsuspected DHS email interception program, it seems likely that CBP obtained copies of email between Dr. Dr. Von Der Haar and Mr. Papatheodoropoulos from the NSA. We know that the NSA is copying and archiving as much email as it can get its hands on. But was this email traffic flagged by the NSA as being of interest, and brought to the attention of the DHS? Or did the DHS ask the NSA to retrieve these email messages from the NSA archives, and provide them to the CBP? When, how, and on what basis, does the NSA “share” its email intercepts with the DHS?
We look forward to learning more. We won’t be surprised, though, if the government claims that intercepting email messages on grounds of “national security” and then handing them over to another government department in order to detain and interrogate an innocent US citizen about her sex life is a “state secret”.
I wouldn’t necessarily assume the NSA was the source. Seems like they could have easily obtained them using the ridiculously outdated ECPA.
I call on all people of conscience who work for the government participating in activities such as this, to quit your job and find another. You must realize that saying “I was just following orders” or “Just doing my job” doesn’t cut it. You are responsible for everything you do, and eventually you will be held to account.
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Another TV interview with Dr. Von Der Haar and her attorney:
http://www.theindychannel.com/news/local-news/iu-professor-aclu-suing-customs-officials-over-alleged-4th-amendment-violations-at-indy-airport
Many notorious spies like John Walker were able to operate freely for years because polygraph operators were more interested in asking about their sex lives than about whether or not they’d sold US secrets to foreign powers. The assumption was that gays and lesbians were likely to be spies, although there was no evidence for this in the US that I know of, but that heterosexuals were not. So guys who were selling US secrets to the Russians could pass their polygraph tests simply by being openly sexist. Men who cheated on their wives with other women, or who had sex with many women, were assumed worthy of being trusted with US secrets due to their obvious heterosexuality.
I don’t think the US government has changed very much. Security investigations are likely to be more concerned with sexuality than with security concerns, simply because investigators are annoyed when they have to stop watching porn long enough to do their jobs, so they tend to focus on sex above anything else. Millions of taxpayer dollars have been wasted on federal employees who were caught watching porn while on the job, and taxpayers never get a rebate for stuff like that. The TSA is also ineffective at detecting security risks, but has spent billions in taxpayer money to amuse TSA agents by allowing them to sexually humiliate passengers.
Despite their high-faluting titles and departments, this country is still run by a bunch of aging but unrepentant drunken frat boys who still like to harass women and destroy foreign countries for sport.
The CBP suspected that his real reason for coming to the U.S. was to marry Dr. Von Der Haar and obtain citizenship. That makes the questioning of her relationship less Kafkaesque. Of course the suspicion was wrong. And the real concern is that they had access to email messages. Or is is that the government doesn’t want well-educated Greek entrepreneurs emigrating to the U.S?
Even if you’re right, Mr Harris, it’s beyond irrelevant. The path to citizenship is not quick & paperwork-free. If there was some suspicion of wrongdoing then that can be addressed then. If they believed his visa was wrongly issued then why not call him in for questioning or simply revoke the visa?
Even then, why are these goals which we as a nation would consider incompatible? A ten year visa was issued to the man based on presumably submitted business information. If that passed muster then why would it matter if he also was interested in a relationship with someone here? If he met a complete stranger and fell in love and applied for a fiance visa we’d accept that as a path (subject to the usual scrutiny).
Nothing about this situation smells like something that needed this kind of invasiveness and violation of privacy.
Assuming the two principals were similar to the mass of digital humanity in their use of social media, I strongly suspect their relationship could have been inferred without resorting to email intercepts.
@James Klun – It may be that “their relationship could have been inferred without resorting to email intercepts”. But in fact, assuming the allegations in the complaint are true, the CBP officers *admitted* that they had obtained intercepted email. If the CBP officers’ conclusions could have been “inferred” from public sources without resorting to email interception, does that make the email interception, and the DHS/CBP access to the intercepts, better or worse?
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If they had wanted to communicate privately – all they had to do was open email accounts and type whatever they wanted into their draft folder and never send it.
Just post a letter with the login and password and each could read their emails in the others draft folders without ever sending an email to be intercepted.
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Ian, they’ve figured that one out, doesn’t really work anymore. Al digital is contaminated. It is pure slave state technology without exception. Hear my chains rattle!
that’s right ian moone, nobody ever got caught that way!
If he wanted to overstay a visa, he would have just gotten a visa waiver…. http://athens.usembassy.gov/vwp-greece.html
Ian Moone: That’s 100 percent not true. Surveillance agencies are wise to that trick. A most recent example is the scandal where General Petraeus was caught communicating by leaving messages in his Drafts folder.
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> In general, immigration (as distinct from customs) offenses are handled by Immigration and Customs Enforcement (ICE) and the Border Patrol, not CBP.
In fact, this is totally in scope for CBP. Border Patrol is a department within CBP and CBP handles border enforcement while ICE handles investigations (i.e. you enter the country, you’re dealing with CBP; you think someone is planning to exploit a loop hole in port processing, you contact ICE).
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You write:
“In general, immigration (as distinct from customs) offenses are handled by Immigration and Customs Enforcement (ICE) and the Border Patrol, not CBP.”
Uh, what do you think the BP stands for in CBP?? ;)
And not to nitpick, but CBP handles immigration offenses on a daily basis. They’re the ones that grant entry into this country. The type of offense that Papatheodoropoulos was accused of is exactly the type of thing CBP officers deal with and handle on a daily basis at airports. I think you mean ICE is the agency that investigates immigration offenses. I think the proper procedure would have been CBP referring the case to ICE since Papatheodoropoulos had already been granted entry into the USA. Alas there is a lot of friction between the two agencies, so I’m not too surprised it didn’t happen.
I’m not defending CBP at all. This case is clearly both disgraceful and shameful. The professor’s rights were violated, and there really shouldn’t have been a case anyway. Just felt obligated to make the clarification.
Apparently, you don’t know what CBP (or ICE) actually do or are responsible for under the law. Contrary to your assertion that “generally, immigration (as distinct from customs) offenses are handled by Immigration and Customs Enforcement (ICE) and the Border Patrol, not CBP.
First, the Border Patrol is actually a part of CBP.
Second, CBP IS empowered to enforce immigration laws at all ports of entry, which includes international airports and seaports.
Third, it seems that you missed the ‘C” in ICE – which stands for Customs. ICE is an agency that conducts investigative and enforcement activities into BOTH immigration and customs – primarily smuggling operations.
Fourth, by her own statements, Von Der Haar admits that there was a ‘flirtatious’ relationship that went back 40 years.
Fifth, CBP has been granted what is termed as ‘Border Search Authority’ and are allowed by law t o search any electronic media (computers, phones, etc). Reminder – an international airport is deemed to be a ‘border’ for immigration purposes.
While I was not there (obviously), what I see is that CBP saw the ‘possibility of a relationship’ that might be construed as intent by Papatheodoropoulos to remain in the U.S.
If, in fact, CBP has some method of reading emails, then this does present a precarious legal issue.
However, based on what I see in the article, it seems to me that CBP made a connection between the two persons that required further questioning. I was not there, so I cannot say what questions were actually asked, but questions about the context of a relationship between the two persons is not ‘illegal’ to determine the true intent of Papatheodoropoulos or the extent to what Von Der Haar was complicit.
I think that you ‘tinfoil hat’ people need some sunshine and oxygen.
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More commentary about this story:
James Fallows, The Atlantic:
http://www.theatlantic.com/politics/archive/2014/03/friday-update-filibuster-surveillance-state-political-macho-and-other-hardy-perennials/284292/
Mike Masnick, Techdirt:
https://www.techdirt.com/articles/20140305/17284126449/homeland-security-detained-us-citizen-inside-us-used-intercepted-emails-to-quiz-her-about-her-sex-life.shtml
Immigration Prof Blog:
http://lawprofessors.typepad.com/immigration/2014/03/dhs-uses-email-intercepts-to-question-us-citizen-about-her-sex-life.html
Kelly Riddell, Washington Times:
http://www.washingtontimes.com/news/2014/mar/7/dhs-accused-holding-woman-prying-into-sex-life/
Some commenters here and elsewhere have questioned whether DHS actually obtained intercepted email messages between Dr. Von Der Haar and Mr. Papatheodoropoulos (rather than based its suspicions and interrogation on some other source of information), or whether the DHS would have had access to NSA intercepts.
Dr. Von Der Haar’s complaint, quoted from and linked to from our article above, specifically alleges that she was questioned about “the contents of email messages that Dr. Von Der Haar and Mr. Papatheodoropoulos had sent each other” and that “Defendant Lieba admitted that employees of the United States had read email communications between Dr. Von Der Haar and Mr. Papatheodoropoulos.”
We know that email and other information intercepted by the NSA is shared with “law enforcement” agencies. We’ve never seen any claim that this “sharing” is limited to the FBI or other components of the Department of Justice, and we have no reason to think it is so limited.
DHS now has more law enforcement personnel than DOJ, and CBP is now the largest Federal law enforcement agency. The FBI is supposed to be primarily a domestic law enforcement agency, while CBP is the primary front-line US law enforcement agency concerned with international matters. While NSA interception includes purely domestic communications, NSA analysis of its intercepts is supposed to be focused on international issues, which would be more likely to be relevant to CBP than the FBI.
For these reasons, we think it likely that the *primary* law enforcement “customer” for DHS intercepts is the DHS, and CBP in particular, not the FBI or any other DOJ component.
DHS access to NSA intercepts is solely a matter of internal policies and procedures for sharing information between Federal agencies — the vaunted “connecting the dots” between national security and homeland security.
The question is what the internal administrative criteria and procedures are supposed to be for access by CBP or other DHS components to the NSA’s archives of intercepted email and other data, and what internal administrative safeguards are supposed to protect us against its abuse.
We’re aware that the Border Patrol is a component of CBP, and that *some* CBP officers (such as those staffing passenger checkpoints at borders and airports) routinely handle both immigration and customs matters. But the defendants in this case aren’t alleged to have been from the Border Patrol or at a passenger checkpoint. They were at a *customs* office, on the airport grounds but separate from the passenger terminal (which includes international passenger arrival and departure facilities). As other commenters have noted, normal procedure in case of suspicions related to Mr. Papatheodoropoulos’ immigration status would have been to refer the matter to ICE. And with respect to the detention of Dr. Von Der Haar, a US citizen who wasn’t traveling, crossing the border, entering or leaving the country, or engaging in any international shipping or receiving of goods, both CBP and ICE (if ICE turn out to have been involved as well) would appear to have been out of their jurisdiction.
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Amended complaint filed August 25, 2014:
http://papersplease.org/wp/wp-content/uploads/2014/09/vonderhaar-amended-complaint-25aug2014.pdf
Secrets, Lies and Cover-Ups: How the Government Spied on Me and (Almost) Got Away With It
By Christine Von Der Haar (May 4, 20`15):
http://www.aclu-in.org/issues/freedom/privacy-and-technology/320-secrets-lies-and-cover-ups-how-the-government-spied-on-me-and-almost-got-away-with-it
“In her sworn statement, the female officer testified that several days in advance of the events of June 8, 2012, she and a colleague examined my friend’s shipment, opening cartons and taking pictures of the contents. In the boxes, she claimed, they found copies of our email correspondence. However, when this colleague was asked about the emails under oath, he testified that my friend handed him the personal emails at the window of the CBP office.
Of course, both statements are absurd. My friend did not ship or carry with him personal emails. The detailed inventory of the boxes provided by the shipping company makes no mention of such documents. And not surprisingly, the CBP cannot locate those pictures they say they took of the contents of the boxes….”
http://www.aclu-in.org/news/36-news-with-photos/319-woman-detained-at-airport-tells-her-story
The ACLU of Indiana and Von Der Haar reached a settlement and the case was dismissed on April 13.
“This case raises troubling issues about the power of the government to secretly investigate, detain and question citizens,” said ACLU of Indiana Staff Attorney Kelly Eskew, who represents Von Der Haar.
The lawsuit, Christine Von Der Haar v. United States, 1:14-cv-00247-JMS-DML, was dismissed in the U.S. District Court for the Southern District of Indiana on April 13, 2015.
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