Inquiring minds at the American Civil Liberties Union (ACLU) want to know if officers or agents of US Customs and Border Protection (CBP) or other components of the Department of Homeland Security (DHS) have tried to stop you from taking photographs, filming, or recording publicly-visible scenes and events at US land border crossing points.
As we’ve noted many times in this blog, and as as has been established in court cases in which we have participated, you have the right to photograph and record Transportation Security Administration staff and contractors at TSA checkpoints at airports.
We haven’t talked about land “ports of entry” as much as airports, but you also have the right to photograph and record at land border crossings, at least if you do so from places accessible to members of the public who aren’t crossing the border. (We don’t mean to suggest that you don’t also have the right to record or livestream what happens to you as you cross the border. We think you do, but that hasn’t yet been litigated as extensively.)
Read on for more about the state of the law, what you can do to reduce the chances that your right to photograph and record near borders will be violated, and what to do if it is.
The right to photograph and record at land border crossings was recognized in a settlement agreed to by the DHS (of which CBP is a component) and the ACLU in late 2020 in a lawsuit brought in Federal court in San Diego on behalf of two border-region activists.
In separate incidents, the plaintiffs in the lawsuit were illegally detained, threatened, verbally abused, and had their digital photos seized, viewed, and deleted, without their consent, by CBP officers outside CBP facilities at the border crossing points in San Ysidro (crossing point to and from Tijuana) and Calexico (crossing point to and from Mexicali).
CBP tried to justify its actions by reference to internal “guidelines” and “ground rules” of dubious validity or applicability. The guidelines purport to restrict activities by “accredited news media” on CBP property at ports of entry, but weren’t promulgated as regulations.
The plaintiffs in the lawsuit were private individuals, not seeking or needing credentials, and they weren’t on CBP property but on public rights-of-way outside the CBP facilities.
The Ninth Circuit Court of Appeals didn’t reach the issue of whether the guidelines are Constitutional, but noted in a footnote to its opinion sending the case back to the District Court:
We also anticipate that the parties will help illuminate why CBP’s Directive and Ground Rules are even relevant to this case. Both written policies apply to “accredited” news organizations and representatives seeking advance approval for visits to CBP facilities….
Similarly, the Ground Rules provides that “[r]eporters” who do not obtain advance permission may be denied entry and that members of the media who are admitted to port property must be accompanied. The Ground Rules prohibit photography in “non-public-spaces such as the patdown room and holding cells.”
We are puzzled as to how these guidelines apply to members of the public, whether media or not, who take photographs outside of port of entry facilities from streets and sidewalks accessible to the general public, whether those streets and sidewalks are on or off the port of entry. On their face, the policies would not appear to apply to plaintiffs at all, much less sanction the detention of plaintiffs and the destruction of their photographs under the circumstances alleged.
Before the District Court to which the case was remanded could reach a decision, the DHS and the ACLU came to an agreement to settle the case. The DHS promised that:
The Department of Homeland Security and its components, including but not limited to U.S. Customs and Border Protection and Federal Protective Service, shall not prevent, impede, or otherwise interfere with the First Amendment rights of members of the public to make and retain photographs, video recordings, or other recordings of matters or events from a Publicly Accessible Area at any land port of entry in the United States. A Publicly Accessible Area is an outdoor area at a land port of entry where a member of the public is permitted to be regardless of whether they intend to cross the United States border.
The DHS also promised to train its staff about these First Amendment rights (which might make it harder for them to claim ignorance of the law in the future), and to pay the ACLU more than half a million dollars in legal fees and expenses.
Perhaps most importantly, the settlement agreement provides for the District Court to retain jurisdiction over the case for five years, until September 2025, to make sure that the DHS keeps its promises. If the DHS, any of its components, or their officers, staff, or agents violate the settlement agreement, the court can find them to be in contempt of court.
The settlement, the promises made by the DHS, and the power of the Court to find the DHS in contempt of court or impose sanctions for violations of the settlement agreement extend to all members of the public, not just the original plaintiffs in the lawsuit. They apply to all official points of entry along both the US-Mexico and US-Canada borders, to CBP and all other DHS components, and to all of their officers, employees, and agents.
However, any complaint of a violation of the settlement must be made by the original plaintiffs through the ACLU as their legal representatives. If you believe your First Amendment rights have been violated by US government agents at or near a land port of entry into the US, you can use this form to report what happened to the ACLU. The ACLU can use these reports to ask the Court to take action to enforce the settlement.
If you live, work, or travel in the vicinity of a land border crossing, and might want to take photos or record what you see and/or hear, consider carrying a copy of the settlement agreement to show to any Federal agents who threaten or try to interfere with your rights.
The plaintiffs in the ACLU lawsuit about photography and recording at land border crossings didn’t raise a claim under the Privacy Protection Act, most likely because they didn’t know to assert their rights under this law. But they probably could have done so.
As we have discussed in earlier blog posts, the Privacy Protection Act protects anyone (not just professional journalists) who intends to distribute written descriptions, photos, or recordings to the public — even if you only plan to do so on social media or your own blog.
The Privacy Protection Act applies to all law enforcement officers, Federal, state, and local. It applies everywhere in the US, with a limited exception for certain searches if, and only if, you are actually crossing the US border or entering or leaving the US at an international airport (but with no exception for TSA searches or domestic flights within the US).
The Privacy Protection Act provides for a “private right of action” and money damages payable both by the government and by any law enforcement officers responsible any violations of the law. But ignorance of the law is sometimes a defense for police, if not for members of the public. So it’s important, as we discuss in this guide to the Privacy Protection Act, as it applies at airports and borders, to tell any law enforcement personnel who ask to view, search, or seize your photos or recordings that they contain “work product and other documentary materials” and that you intend to disseminate some of them to the public. Refer them specifically to the Privacy Protection Act, 42 USC § 2000aa. If they search or seize your photos, recordings, devices, or digital media, see a lawyer.