A new report by Seth Harp in The Intercept confirms that, despite by ongoing litigation challenging warrantless, suspicionless searches of travelers’ electronic devices, the US Customs and Border Protection (CBP) division of the DHS is continuing to target journalists for these illegal searches and for interrogation about their journalistic travel and other activities.
Mr. Harp’s experience shows yet again why the lawsuit brought in Federal District Court in Boston by the ACLU, ACLU of Massachusetts, and EFF is so important. CBP officials have admitted in deposition testimony and documents produced in response to the lawsuit that they use — and claim the authority to use — warrantless searches at borders and international airports to search travelers’ electronic devices (smartphone, laptops, memory sticks, etc.) for “general law enforcement purposes” unrelated to customs or immigration laws, for pre-crime predictions (“risk assessments”), and on behalf of other government agencies including state and local police, the IRS, etc.
Several of the plaintiffs in the lawsuit are journalists who have been subjected to warrantless searches of their electronic devices when they traveled internationally.
As of now, the court is considering the plaintiffs’ motion for a finding that searches of electronic devices at international borders or airports require a warrant approved by a judge and based on probable cause for suspicion of a crime. But CBP has made clear that will continue its suspicionless searches unless and until it is ordered to stop.
Mr. Harp’s harassment began when he started answering questions about his journalistic travel and activities. Eventually, under duress, he was intimidated — while being held incommunicado, and after his request to consult a lawyer was denied — into giving CBP officers the passwords to his smartphone and laptop.
Mr. Harp hoped that since he was innocent of any crime, answering innocuous-seeming questions and providing CBP officers with the passwords to his devices would expedite his release. His experience should be a reminder to journalists and other travelers that CBP officers and borders and airports are police, and should be dealt with as such. Anything you say to them can and will be used against you. Anything. Say as little as possible.
If you are a U.S. citizen, you don’t have to answer any questions from CBP not related to your customs declaration or to establishing your U.S. citizenship. Do not consent to any search, do not provide CBP with any password, do not consent to seizure of your devices (they may seize them anyway, but if you consent, you may forfeit your right to challenge the seizure), and exercise your right to remain silent in response to any other questions.
If you are a journalist, blogger, or plan to post anything to social media related to the data on your devices, assert your rights under the Privacy Protection Act (42 US Code § 2000aa). The search of Mr. Harp’s electronic devices, like many of the searches described by the plaintiffs in the lawsuit in Boston, appear likely to have violated the Privacy Protection Act — but if, and only if, CBP or other responsible law enforcement officers were aware that the devices they wanted to search or seize belonged to journalists or other people protected by the law, and contained data potentially intended for public dissemination (e.g. posting of smartphone photos on social media).