Nothing to declare: Why U.S. border agency’s vast stop and search powers undermine press freedom A special report by the Committee to Protect Journalists Nothing to declare: Why U.S. border agency’s vast stop and search powers undermine press freedom A special report by the Committee to Protect Journalists Founded in 1981, the Committee to Protect Journalists responds to attacks on the press worldwide. CPJ documents hundreds of cases every year and takes action on behalf of journalists and news organizations without regard to political ideology. To maintain its independence, CPJ accepts no government funding. CPJ is funded entirely by private contributions from individuals, foundations, and corporations. CHAIR HONORARY CHAIRMAN EXECUTIVE DIRECTOR Kathleen Carroll Terry Anderson Joel Simon DIRECTORS Mhamed Krichen Ahmed Rashid al-jazeera Stephen J. Adler David Remnick reuters Isaac Lee the new yorker Franz Allina Lara Logan Alan Rusbridger Amanda Bennett cbs news lady margaret hall, oxford Krishna Bharat Rebecca MacKinnon David Schlesinger Susan Chira Kati Marton Karen Amanda Toulon bloomberg news the new york times Michael Massing Darren Walker Anne Garrels Geraldine Fabrikant Metz ford foundation the new york times Cheryl Gould Jacob Weisberg Victor Navasky the slate group Jonathan Klein the nation getty images Jon Williams Clarence Page rté Jane Kramer chicago tribune the new yorker SENIOR ADVISORS Steven L. Isenberg Sandra Mims Rowe Andrew Alexander David Marash Paul E. Steiger propublica Christiane Amanpour Charles L. Overby cnn international freedom forum Brian Williams msnbc Tom Brokaw Norman Pearlstine nbc news Matthew Winkler Sheila Coronel Dan Rather bloomberg news columbia university axs tv school of journalism Gene Roberts James C. Goodale philip merrill college of debevoise & plimpton journalism, university of maryland © 2018 Committee to Protect Journalists, New York. All rights reserved. Design: John Emerson. ISBN 978-0-9991321-9-7 NOTHING TO DECLARE: WHY U.S. BORDER AGENCY’S VAST STOP AND SEARCH POWERS UNDERMINE PRESS FREEDOM About this report Secondary screenings of journalists crossing U.S. borders risk undermining press freedom as Custom and Border Protection agents search devices such as laptops or phones without warrant and question journalists about their reporting and contacts. As the government ramps up searches of electronic devices, rights groups mount legal challenges to fight invasive searches. A special report by the Committee to Protect Journalists. Published October 22, 2018 This report was written by CPJ North America Program Coordinator Alexandra Ellerbeck and CPJ North America Research Assistant Stephanie Sugars, with additional research and reporting by North America Research Associate Avi Asher-Schapiro. CPJ Advocacy Director Courtney C. Radsch wrote the accompanying piece, “CPJ’s slog to improve DHS and CBP policy toward journalists.” Reporters Without Borders contributed research and data collection. Ellerbeck leads CPJ’s research on press freedom issues in North America. Prior to joining CPJ in 2015, Ellerbeck worked as the senior research assistant and regional Latin America expert for Freedom House’s annual publication “Freedom on the Net,” which surveys internet freedom in 65 countries. Sugars has reported for several international outlets, including Al Jazeera and Open Democracy. She graduated from New York University with a Masters in journalism and international relations in May 2018. Radsch serves as CPJ’s chief spokesperson on global press freedom issues and frequently writes and speaks about the intersection of media, technology, and human rights. Prior to joining CPJ, Asher-Schapiro was a staff writer at VICE News, International Business Times/Newsweek, and Tribune Media. His reporting on technology and human rights issues has been published in outlets including The New York Times, The Atlantic Monthly, and The Intercept. COVER PHOTO: Customs and Border Protection agents pictured at Los Angeles International Airport in January 2017. The agency’s power to search electronic devices without warrant has serious implications for press freedom. (Reuters/Patrick T. Fallon) 3 CONTENTS Report Summary 7 Nothing to declare: Why U.S. border agency’s vast stop and search powers undermine press freedom 8 Changing the Landscape: Key rulings on border searches 12 CPJ’s slog to improve DHS and CBP policy toward journalists 15 CPJ Safety Advisory: Crossing U.S. borders 19 Recommendations 22 NOTHING TO DECLARE: WHY U.S. BORDER AGENCY’S VAST STOP AND SEARCH POWERS UNDERMINE PRESS FREEDOM Report Summary he ability of a government agent to scour a phone or staff crossing the border. laptop without any legal process is a chilling prospect, The agency is opaque about the data it collects and how Tparticularly for journalists working with whistleblowers. it works with other federal agencies. Several journalists But that is exactly the prospect journalists crossing a U.S. told us that a lack of transparency, particularly over infor- border face thanks to the wide powers granted to Customs mation sharing, was particularly worrying. and Border Protection agents, who can search electronic The potential impact of this is illustrated in documents devices without warrant, and question reporters about released in a 2010 case, when CBP—at the behest of Im- past and current work. migration and Customs Enforcement, which was working To measure the impact these warrantless searches have with several other federal agencies--searched the laptop on the media, CPJ and our partners at Reporters Without and phone of an activist as part of an investigation into Borders sent an open call to journalists who have been an alleged unauthorized leak of sensitive information. In stopped at a U.S. border. We spoke with two dozen jour- a separate legal filing, CBP listed “classified information” nalists and searched news reports and legal filings for pub- as an example of the contraband that it has power to in- lic cases. Ultimately, we identified 37 journalists who said tercept. they found the secondary screenings invasive. Of these The Department of Homeland Security, which oversees cases, 20 said that border agents conducted warrantless CBP, did not respond to our requests for comment for this searches of their electronic devices. report, despite repeated requests. While the number of public cases is small compared This is an important time to document the threats that with the millions of travelers who cross the U.S. border journalists face at the border. At least two bills are in Con- each day, we know that these searches can have an out- gress that, if enacted, would restrict the powers CBP has to sized effect. CBP figures show that in the past three years, conduct electronic device searches of citizens and perma- the agency tripled the number of warrantless electronic nent residents. Separately, our partners at the American device searches it conducts. Journalists told us that these Civil Liberties Union and the Electronic Frontier Founda- searches and agents’ questions about their current and tion are challenging the constitutionality of warrantless past reporting are affecting their ability to protect sources electronic device searches in court. Our research shows and have impacted the way they plan reporting trips and that a fundamental change is necessary to protect the First travel. Newsrooms said that they were ramping up secu- and Fourth Amendments at the border, and for no group is rity training on digital protection and best practices for this more urgent than the press. 7 Nothing to declare: Why U.S. border agency’s vast stop and search powers undermine press freedom avid Degner, an American photojournalist who spent only a fraction are included in the less than 1 percent of years working in Egypt, never expected that the digi- travelers whose electronic devices are searched. However, Dtal security habits he adopted while working in an authori- conversations with these journalists flagged several issues tarian country would be needed while traveling to the U.S. that threaten press freedom—a right that should be en- But when a Customs and Border Protection (CBP) agent shrined and protected for everyone who steps foot in the stopped him at a pre-clearance center in Toronto in 2016, U.S. the journalist said he found himself demanding that his The most serious issue is that CBP can, without war- rights to privacy be respected. rant, gain access to all the information stored on a phone Degner, who has worked for publications including Na- or laptop and share it with other federal agencies. For a tional Geographic, The New York Times Magazine, and journalist, this could expose contact information, notes, The Wall Street Journal, said that when he questioned images, and communication with, or documents from, what right the officer had to demand his phone and pass- confidential sources. words, the agent passed him a sheet of paper asserting Other issues include a lack of transparency about how that CBP—the U.S. law enforcement agency responsible CBP collects and shares data with domestic law enforce- for monitoring points of entry—had authority to examine ment and other agencies, and its assertion in a legal fil- anything brought into the U.S. ing in December 2017 that classified U.S. information is “Luckily I’m used to living in authoritarian countries among the items it considers contraband—a definition where police regularly stop people on the streets and de- that could have serious consequences for journalists in- mand to see their phones without cause,” Degner said, add- creasingly relying on whistleblowers when reporting on ing that he handed over his phone after the agent said CBP politics and national security. had power to confiscate it, and was relieved that he was in Journalists also said they are confused about their the habit of wiping his phone of sensitive information. rights, and the processes for requesting answers or seek- Over the past nine months, the Committee to Protect ing redress were often ineffective.