Reporting near the border? The ACLU has some advice for you.

Photo via Wikimedia Commons

One day last spring, Sarah Silva drove north on Interstate 25 out of Las Cruces, New Mexico, with her boyfriend, Heath Haussamen, sitting in the passenger’s seat. They stopped at a Border Patrol checkpoint—nothing unusual for the two, who live roughly 50 miles from Mexico. “We’re surrounded by militarized checkpoints,” Haussamen says. But he didn’t expect what happened next.

An armed agent “intimidated and berated” Silva “until she was shaking and near tears,” Haussamen wrote in a column about the incident. Silva is Latina. The agent asked where she was born. “I’m a US citizen,” she told him. But that didn’t answer the question. The agent leaned into her face with two other officers surrounding the vehicle. “I felt powerless to stop it,” according to Haussamen, who is white. When Silva finally answered that she was born in the United States, the agent relented.

Haussamen, who operates a local news website, took the incident as a personal affront. “We’d both been questioned at checkpoints, but neither of us had experienced anything that severe before—or since,” he says. “Sarah and I both have daughters,” Haussamen writes. “Had our girls been with us that day, that agent would have taught them to be terrified of law enforcement officers.”

The checkpoint episode was also a professional wake-up call for Haussamen. As editor and publisher of NMPolitics.net, based in Las Cruces, Haussamen grew concerned for his colleagues. “Journalists are no different than other citizens in these situations,” he says, except they often store sources’ contact information and confidential correspondence on phones, laptops, and notebooks at a time when electronic devices are increasingly subject to searches. When government agents search a journalist, not only is his or her own privacy violated—so is the privacy of any source whose information is stored on that journalist’s phone or computer.

Federal agents inspected 23,877 electronic devices in 2016—nearly five times as many as in 2015, the Associated Press reported in February. Meanwhile, several cases involving journalists being detained, searched, or denied entry to the United States have made national headlines.

Checkpoints present logistical hurdles for journalists, too. Reporters and camera crews racing to cover a fire, a wreck, or other breaking news lose precious time when they’re detained or delayed by border agents.

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So Haussamen, a Society of Professional Journalists Rio Grande Chapter board member, teamed up with ACLU lawyers to offer a half-day training on March 25 centered on journalists’ rights at the border. It was the first such training—anywhere—involving the ACLU and journalists’ border rights. Haussamen hopes to have several more, in addition to off-the-record meetings between journalists and border agents to speak frankly about the law and its interpretations. Also in the works from SPJ Rio Grande: a potential video and “know-your-rights literature” for journalists in border regions.

“Now is a good time for journalists to really do some hard thinking,” says ACLU staff attorney Nathan Freed Wessler in an interview with CJR.

Here are some key considerations:

 

What constitutes “the border”?

Border crossings include dozens of land sites and seaports, plus airports with international terminals. Border agents also have powers within a “reasonable distance from any external boundary of the United States.” The federal government has determined “reasonable distance” to mean 100 miles. That zone essentially traces the outline of the United States—an area where more than 200 million people live. Seattle, San Jose, Houston, Chicago, Philadelphia, Boston, the whole of Florida and several other East Coast states—they’re all in that zone. The residents of many of those regions aren’t accustomed to having Border Patrol checkpoints in their midst. But the Department of Homeland Security reserves special powers in those areas nonetheless.

 

Can border agents search your electronic devices?

It’s complicated—and many questions about border agents’ authority have yet to be tested in court.

The Fourth Amendment protects Americans from unreasonable searches and seizures. That means, for example, police officers need a warrant to search a citizen’s property. But CBP claims such protections don’t fully apply at the border. Federal agents have the power to inspect, without warrants, travelers’ “baggage,” and CBP takes that to mean electronic devices as well. Customs and Border Protection thinks the issue “is entirely black and white,” Wessler says. “We strongly disagree.” The ACLU thinks “electronic devices should not be considered the same as physical luggage like suitcases or handbags. But few courts have weighed in on this question so far.”

Wessler says there’s also a difference between a “cursory search” (an agent quickly looks through a device on the spot) and a “forensic search,” which is typically conducted off-site and entails “downloading the entire contents of the device” and thoroughly inspecting all data, metadata, and deleted items. In 2013, the Ninth Circuit ruled that agents need “reasonable suspicion” to conduct forensic searches (but not cursory searches) on devices at the border. In 2014, the Supreme Court ruled unanimously that police need a warrant to search cellphones. The ACLU thinks the same should hold true for border agents—and Senator Ron Wyden (D-Ore.) is introducing a bill that would make such requirements the law.

Furthermore, Border Patrol agents within the 100-mile zone cannot pull someone over without reasonable suspicion of an immigration violation or crime, and they can’t search a vehicle in that zone without probable cause. “That probable cause standard is the exact same legal standard that applies to the local police searching someone’s car after they pull it over in a traffic stop,” Wessler says. By extension, the ACLU thinks the same rules should apply to electronic device searches inside the 100-mile zone.

 

Can border agents demand yours passwords?

They might try, and Wessler says journalists should prepare a response. That response will likely vary depending on an individual’s immigration status. “For US citizens, and in most circumstances for returning green card holders, CBP can’t literally compel you to provide your password,” he says. But they can detain you for hours, and they might seize your device. It’s an individual decision how much “inconvenience” a person is willing to bear, Wessler says. Non-citizens entering the US on visas face greater consequences. “There is a risk that by refusing to provide a password, CBP may decide to turn the person away, to deny them entry.”

 

How can journalists prepare for traveling through border areas?

Preparation can help minimize border hassles. “Many of the best protections are going to be things you can do before you get to the border,” Wessler says.

  • Travel with as few devices as possible.
    One recommendation is to mail electronic devices back home rather than carrying them through the border. However, that’s impractical for journalists in the 100-mile zone, Haussamen says. “We live here, we gather news here, we can’t just mail our devices to ourselves on the other side of the zone. We’re here all the time.” If it’s feasible, Wessler advises traveling with phones or laptops used solely during the journey, keeping primary devices at home.
  • Encrypt your devices.
    “Encrypting your devices and setting a strong, unique password for each one creates a series of impediments to unjustified searches,” Wessler says. (The Electronic Frontier Foundation offers a guide here, and the Committee to Protect Journalists weighs in here.) 
  • Store sensitive information elsewhere.
    Keep a copy of critical information in the cloud or on a hard drive elsewhere. “If your devices end up being seized,” Wessler says, “you still have some other options to get your work done.”Also, store sensitive photos in a safe place such as a password-protected device or cloud-storage account. Back them up, then reformat your camera’s memory card before crossing a border. At this point, no professional cameras offer secure storage of the images on them.
  • Make a plan before you’re stopped.
    If border agents detain you, you might be allowed one phone call. Haussamen urges journalists to plan ahead. Think of one person you can call who can call others for you. “You need your family to know. You need your newsroom to know. You probably want the ACLU notified,” he says.The Nieman Lab also recommends staff journalists work with their higher-ups to develop a border-crossing policy and a ready response, should border agents demand a device or a password. Something like, “My organization doesn’t allow me to cross borders with passwords to devices containing sensitive information.”Given the political climate, journalists and border agents will likely interact more often in the future. Planning ahead is key. “My attitude right now is: Learn as much as I can, be prepared for anything, and then hopefully it doesn’t happen,” Haussamen says. “I’d rather be prepared for a situation that doesn’t play out than not prepared and find myself in the middle of it.”

 

The memory of his and Silva’s checkpoint experience still rankles him. “To this day, it makes me angry,” Haussamen says. “Those of us living in the Las Cruces/El Paso region literally can’t leave the area in any direction without being questioned by armed agents who are allowed to racially profile at checkpoints that look like fortresses. I can’t go to Albuquerque for work, to the mountains to hunt, or to visit my sister in California without passing through a checkpoint.”

The couple filed a formal complaint against the officer, but they don’t know the outcome because it was deemed a “personnel issue.” After Haussamen wrote his column, he began hearing “story after story after story” from people, “both brown and white,” having troubles at checkpoints. “There’s no question the stories I hear of harassment or worse by Border Patrol more often come from Latinos than anyone else,” he says. “And that’s not surprising. Thanks to a decision during the Obama administration, border agents are still allowed to engage in racial profiling, and I believe they do.” President Obama later discussed strategies for confronting and ending racial profiling; meanwhile, the American Civil Liberties Union of Arizona obtained 6,000 pages of government records containing scores of complaints against border agents who use such methods as tactics. (A US Senate bill that would end racial profiling by law enforcement was introduced in 2015, but it was referred to a committee without further action.)

Are the border hassles a fair tradeoff for the benefit of border law enforcement? “It’s difficult to get data from border agencies,” Haussamen says, so the answer isn’t clear. What is clear is that it’s a question Americans will continue to confront.

Journalists who want to know more about their rights on the border, or potential trainings on the issue, can contact Heath Haussamen at heath@haussamen.com.

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Karen Coates is a senior fellow at Brandeis University's Schuster Institute for Investigative Journalism, and a fellow with the International Women's Media Foundation. She reports on human rights, health, immigration, refugees, and food security in Asia, Africa, and, most recently, the US/Mexico border.