French-American photojournalist Kim Badawi did not go home to Texas for Thanksgiving this year. He didn't want to risk a repeat of November last year, when he says U.S. border security detained him at Miami airport and interrogated him in minute detail about his private life, political views, and journalistic sources.
Badawi, who had traveled to Miami from Rio in Brazil, where he is based, said he watched as border agents pored over his private photos and WhatsApp messages, and asked detailed questions about his travel. He said he objected when an agent read WhatsApp messages sent to him by a source, a Syrian refugee living in Brazil. Badawi, whose work has appeared in The New Yorker, The Wall Street Journal, and Le Monde, says he told the officers they should call his editors, but that his request was ignored.
"I sat as the so-called immigration police, or Homeland Security agents, rifled their way through the past 10 years of my contacts, professional conversations, and private ones. Having to account for every post, utterance or other person's internet rant, the fragility of freedom begin [sic] to dawn on me," Badawi wrote in a piece published on Huffington Post.
Customs and Border Protection spokesperson Carlos Díaz told CPJ he was unable to comment on specific cases but said officers strictly adhere to all constitutional and statutory requirements when carrying out border searches.
Journalists traveling to the U.S. can face prolonged stops as well as searches that can risk the confidentiality of their sources. The ACOS Alliance, a coalition of news organizations, journalists, and press freedom groups that includes CPJ, are aware of at least seven instances in which journalists say U.S. border and customs agents stopped them for a prolonged period and asked to search their electronic devices.
CPJ's Emergencies Response Team released an advisory today with information for journalists planning to cross the border, including what to expect and how to secure their electronic devices.
Isma'il Kushkush, a former acting bureau chief of the New York Times in East Africa and International Center for Journalists fellow, told CPJ he constantly worries that he will be stopped. He said it has happened five times in the past three years, with interrogations that last two to three hours. In January, border agents searched his electronic devices and questioned him about reporting on refugees in Sweden that he did as part of his Masters at Columbia School of Journalism, he said.
"Do I want to interview a person or not if that interview could become problematic at the border? It's concerning that I could become a source for law enforcement if they take my information and contacts," Kushkush said.
The U.S. Customs and Border Protection and Immigration and Customs Enforcement agencies say that they have authority to search the electronic devices of any individuals entering the country. The Supreme Court has not ruled on such searches, but it has upheld the so-called "border search exception" to the Fourth Amendment's requirement that authorities obtain a warrant to search items coming into the U.S.
Customs and Border Protection spokesperson Díaz told CPJ, "All international travelers arriving to the U.S. are subject to CBP inspection. This inspection may include electronic devices such as computers, disks, drives, tapes, mobile phones and other communication devices, cameras, music and other media players and any other electronic or digital device."
Many privacy advocates argue that there is a big difference between searching a suitcase to ensure that it doesn't contain weapons or contraband, and searching through someone's private messages on their phone or laptop.
"Smartphones and other electronic devices contain troves of personal data that can be used to construct detailed pictures of the most intimate aspects of our lives. The government claims the authority to search and copy the contents of those devices at the border with no warrant or suspicion of wrongdoing," said Hugh Handeyside, an attorney with the American Civil Liberties Union. "That places at risk the vital privacy interests of hundreds of millions of citizens and visitors who cross the U.S. border each year."
In 2013, the 9th Circuit appeals court ruled, in a divided decision, that border agents cannot engage in a deep forensic search of electronic devices--allowing them to use software to unlock password protected files, for example--without reasonable suspicion, according to Wired.
The American Civil Liberties Union says travelers are sometimes asked to unlock their phones or provide laptop passwords. "Whether you have a right to decline to provide this information is a contested legal issue. The extent to which officers have the authority to search or copy files in your electronic devices without any reasonable suspicion that the devices contain evidence of wrongdoing is also a contested issue," the group's website says.
Handeyside is representing the award-winning Canadian photojournalist Ed Ou, who says he was detained for six hours on October 1 and interrogated, before being denied entry to the U.S.
Ou, who was on his way to cover the Dakota Access Pipeline protests for the Canadian Broadcasting Company, said that agents read his journal and briefly confiscated his electronic devices. He said he refused to give them the passwords, but that he is worried they removed the SIM cards. He told CPJ he repeatedly tried to tell the four customs agents questioning him that he was a journalist. When he offered to put them in touch with his editors and show his credentials, Ou said they told him they already knew he was a journalist.
Ou, who has worked for years in the Middle East, said he has been subjected to this type of surveillance and harassment before. He once even swallowed a SIM card to protect his sources when he was arrested in an authoritarian country, according to an account he wrote in Time.
"Journalists shouldn't have to make a calculation about whether they can risk giving up their sources," Ou told CPJ. "I always thought I'd have to fight for the rights of journalists abroad. I never thought I'd have to do it here in the U.S. or Canada."
A 2009 internal resolution from the Customs and Border Protection requires agents to consult legal counsel if an individual objects to a search on the grounds of protecting privileged legal material that could implicate someone in a crime. But the directive does not provide the same protection for journalists.
The Department of Homeland Security did not respond to CPJ's request for comment about whether the directive is still in force and whether there are any additional policies regarding sensitive material.
"When countries like the U.S. do this, it sets a precedent around the world that endangers journalists," Ou told CPJ.
When he tried to renew his visa to Turkey December last year, Ou said a consular officer in Tel Aviv told him he was banned. This week, the Turkish government issued a press release defending its own human rights record by arguing that Europe and the U.S. also violate press freedom--and citing how Ou was denied entry into the U.S.
"I'm still banned in Turkey. I didn't know whether to laugh or cry," Ou said.