The U.S. Department of Homeland Security is investigating whether the Customs and Border Protection Agency inappropriately targeted and questioned journalists and activists. The investigation, announced by CBP on March 6, came after NBC 7 obtained documents showing that the border agency compiled a list of individuals, including at least 10 journalists, for additional screening.
The NBC 7 report confirmed CPJ's fears that the border agency, in a coordinated effort, singled out journalists and questioned them about their work.
In recent months, we have spoken with nearly a dozen journalists about their treatment at the border, and released a report, "Nothing to Declare" Why U.S. border agency's vast stop and search powers undermine press freedom." In meetings and emails over the past two years, we have repeatedly raised concerns and made recommendations to the agency and the Department of Homeland Security. We had been due to meet again the day after the NBC 7 story broke. But the border protection agency canceled and has not responded to multiple requests to reschedule.
We sent CBP the following questions. As of publication, it had not responded. Here's what we need to know:
Who authorized the creation of a database of reporters, attorneys, and activists, and what was its intended purpose?
NBC 7 reported that the CBP San Diego field office compiled an internal document titled "San Diego Sector Foreign Operations Branch: Migrant Caravan FY 2019 Suspected Organizers, Coordinators, Instigators, and Media." The document contained a list of 59 activists, lawyers, and journalists who were to be pulled aside for additional questioning.
"By weaponizing border checkpoints through the ongoing harassment of journalists, CBP is attempting to dissuade reporters from doing their job and reporting accurately on the current border situation," Bing Guan, an American student at the International Center for Photography in New York, who was stopped in San Diego, told CPJ.
What Customs and Border Protection policies related to the media exist, and is the agency complying with them?
The border agency told NBC 7 that it had "specific provisions regarding encounters with journalists." In meetings with the border agency in November and December, however, questions from CPJ and partner press freedom organizations about guidelines on the treatment of journalists were repeatedly rebuffed. Policies published on the border protection agency's website about searches of electronic devices provide special protections for attorneys claiming privileged information, but not for people from other professions, including journalists or medical personnel.
We know from news reports and journalists that in San Diego, officials searched through cameras, a documentary filmmaker's cell phone, and another reporter's notebook without any legal order. Journalists stopped at the border told CPJ officials repeatedly questioned them about their reporting on the migrant caravan.
This behavior is in contrast to what is allowed in other agencies. If the Department of Justice wants access to a journalist's communications, it needs to comply with guidelines that require the department to get a subpoena, signed off on by the attorney general. California state shield law protects journalists from having to testify about confidential sources.
What happened at the San Diego border is not an isolated incident. CPJ's report, "Nothing to Declare," identified 37 cases of journalists who found secondary screenings to be invasive. At least 20 cases involved searches of their electronic devices.
Separately, the inspector general is investigating the actions of a border protection agent in an unrelated case, who contacted a reporter and asked to talk to her about her sources, according to The New York Times. The agent allegedly claimed to be working with the FBI on a leak investigation.
Does the CBP use secondary screenings to try to gather information from reporters for use in criminal investigations or intelligence-gathering operations?
Journalism student Guan and journalist Go Nakamura told CPJ that in December, border agents in San Diego asked them to look at pages of photos and identify "instigators" of the caravan.
The border agency told media that the individuals identified in the database obtained by NBC 7 were present during violence at the border, and that journalists were tracked "so the agency can learn more about what started the violence." This statement is concerning, because it seems to endorse the practice of questioning journalists for the purpose of learning about their reporting.
Mark Abramson, an American freelance photojournalist, told CPJ he was questioned by border agents about conditions in the caravan in January, and that an agent went through his notebook without asking permission. "I'm not an informant. My job is to inform the public," Abramson told CPJ.
CPJ's report found that journalists, especially those who are not U.S. citizens, were afraid that if they did not cooperate with border agent's requests, they could be denied entry or put on a list that could hinder their travel. Of the journalists who covered the migrant caravan, at least four told CPJ that they altered travel plans because of concerns that questioning at the San Diego border could have implications for future travel.
CPJ's report recommended that the agency not use secondary screenings to question journalists for the purpose of intelligence gathering that goes beyond the purpose of facilitating lawful travel entry for that individual.
Did the CBP comply with its own policies on the searches of electronic devices when examining the cameras and cell phones of journalists in San Diego? Were these searches carried out only to facilitate lawful entry and identify contraband?
According to the Intercept, Customs and Border Protection officials stopped independent documentary filmmaker Sindbad Guggenheim, asked him to unlock his phone, and disappeared with the device for 15 minutes. (The agency's guidelines say that, with some limited exceptions, searches should be conducted in the presence of the individual). CPJ is also aware of four cases in which photojournalists said that border officials asked them to show photographs from their camera.
The border agency claims sweeping powers to search the digital contents of electronic devices without a warrant to detect contraband or facilitate lawful entry. Legal experts have argued, however, that these warrantless search powers do not apply in cases that fall outside the agency's core mandate.
We still don't know the rationale for the electronic device searches in San Diego. In the context of the targeting of activists and journalists, an agency whistleblower told NBC 7 that he was motived to leak documents because, "We're not an intelligence agency."
Did CBP share information about journalists on its list with foreign governments?
Mexican authorities have denied entry to at least two journalists who had been reporting on the migrant caravan at the U.S.-Mexico border, and who had earlier been questioned by U.S. border agents.
One of those, the Canadian-American photojournalist Kitra Cahana, was held for 13 hours when she arrived in Mexico on January 17, before authorities expelled her the next morning. The NBC 7 investigation later showed Cahana's photograph in internal documents from the border protection agency. It was included in a file of documents allegedly from the International Liason Unit, a U.S. border agency program that coordinates intelligence between Mexico and the United States. The file was emblazoned with the American and Mexican flag and a seal.
Prior to being denied entry into Mexico, Cahana said that Mexican police photographed her passport. Several other journalists told CPJ that Mexican police photographed their passports and, when asked why, were told that the police intended to share the photographs with American border agents.
In statements to journalists before the NBC story broke, the border protection agency said that it did not "pass any form of security alerts to the Mexican government" regarding the lawyers and journalists denied entry into Mexico.
In response to queries that CPJ emailed in February, the Mexican embassy in Washington, D.C. said that it had forwarded the request to the National Institute of Migration, but that it could take a while for the department to respond. As of publication, CPJ had not received a response.