This article originally published by the Committee to Protect Journalists.
Read the full report here: https://cpj.org/reports/2018/10/nothing-to-declare-us-border-search-phone-press-freedom-cbp.php
Report Summary
The ability of a government agent to scour a phone or laptop without any legal process is a chilling prospect, particularly for journalists working with whistleblowers. But that is exactly the prospect journalists crossing a U.S. border face thanks to the wide powers granted to Customs and Border Protection agents, who can search electronic devices without warrant, and question reporters about past and current work.
To measure the impact these warrantless searches have on the media, CPJ and our partners at Reporters Without Borders sent an open call to journalists who have been stopped at a U.S. border. We spoke with two dozen journalists and searched news reports and legal filings for public cases. Ultimately, we identified 37 journalists who said they found the secondary screenings invasive. Of these cases, 20 said that border agents conducted warrantless searches of their electronic devices.
While the number of public cases is small compared with the millions of travelers who cross the U.S. border each day, we know that these searches can have an outsized effect. CBP figures show that in the past three years, the agency tripled the number of warrantless electronic device searches it conducts. Journalists told us that these searches and agents’ questions about their current and past reporting are affecting their ability to protect sources and have impacted the way they plan reporting trips and travel. Newsrooms said that they were ramping up security training on digital protection and best practices for staff crossing the border.
The agency is opaque about the data it collects and how it works with other federal agencies. Several journalists told us that a lack of transparency, particularly over information sharing, was particularly worrying.
The potential impact of this is illustrated in documents released in a 2010 case, when CBP—at the behest of Immigration and Customs Enforcement, which was working with several other federal agencies–searched the laptop and phone of an activist as part of an investigation into an alleged unauthorized leak of sensitive information. In a separate legal filing, CBP listed “classified information” as an example of the contraband that it has power to intercept.
The Department of Homeland Security, which oversees CBP, did not respond to our requests for comment for this report, despite repeated requests.
This is an important time to document the threats that journalists face at the border. At least two bills are in Congress that, if enacted, would restrict the powers CBP has to conduct electronic device searches of citizens and permanent residents. Separately, our partners at the American Civil Liberties Union and the Electronic Frontier Foundation are challenging the constitutionality of warrantless electronic device searches in court. Our research shows that a fundamental change is necessary to protect the First and Fourth Amendments at the border, and for no group is this more urgent than the press.