Journalists crossing U.S. borders face a particular set of challenges, as CPJ has reported extensively. The U.S. government claims sweeping authority to interrogate travelers and search electronic devices without a warrant under what is known as the “border search exception.” CPJ has called this a chilling prospect for reporters in transit—especially those working with confidential sources and whistleblowers.
The Department of Homeland Security has argued that searches are a necessary security measure and that it ensures privacy is protected. Rights advocates have challenged that claim, but courts have split on the issue, some backing greater privacy, and others reinforcing the search authority.
On November 11, however, Massachusetts District Court Judge Denise Casper ruled that the border search regime violates the U.S. constitution. The Electronic Frontier Foundation, one of the organizations that brought the suit alongside the American Civil Liberties Union (ACLU) of Massachusetts, called it “a historic opinion on privacy at the border.”
The ruling in Alasaad v. McAleenan involved 11 plaintiffs who had been singled out and searched while traveling, including Isma’il Kushkush, a New York-based freelance journalist and former acting New York Times bureau chief in East Africa. CPJ documented one of his experiences being searched in December 2016.
CPJ spoke with Kushkush and Sophia Cope, a senior staff attorney at EFF and one of his lawyers, about the significance of the ruling for press freedom. The interview has been edited for length and clarity.
What have you taken away from your experience that journalists need to be aware of?
Isma’il: It’s had an impact on my work in more than one way. I do not carry everything I would normally travel with, especially interview recordings, in case things are taken from me. I keep copies of articles that I have written to show border officials that I am a journalist if they ask. Also, some outlets I work with became concerned with me being stopped or hassled when on assignment.
Some journalists might not be aware that this is happening at the border—and they need to be. I have reported from countries that are authoritarian and seen the kinds of practices these governments use against journalists. Colleagues are shocked when I tell them of my experiences at the U.S. border. When we start comparing that with authoritarian spaces overseas, it highlights the seriousness of this issue. And when you are covering certain communities, certain parts of the world, being aware of this risk is crucial.
How did you get involved in the lawsuit—and why do you think it’s important for journalists to be involved?
Isma’il: It was humiliating to be stopped and questioned over and over, without any explanation. A colleague was also stopped and asked about me; I was being targeted. I sought redress through the Department of Homeland Security, got in touch with my congressman, but it didn’t seem to be going anywhere. That’s when I contacted CPJ. After that, the ACLU contacted me saying they intended to file a case. When you work as a freelancer and a stringer, you don’t have the backing of an institution to fight for you, so a lawsuit was the option that I had to push back.
Sophia: Aside from Isma’il, three of our other clients are in the media field. It’s tremendously important for us to have that component in the case. It’s one thing to say that travelers have a lot of personal information on their phones and laptops. But when the government rifles through journalists’ devices and finds out what they’re reporting on or who their sources are, that burdens the free press. Judge Casper’s opinion highlights the importance of protecting “journalistic work product.”
What did you learn when officials were deposed about how the government uses its border search powers?
Sophia: They told us they will question travelers, not because they think they are guilty of anything, but because they want to gather intelligence on someone a traveler has a relationship with. They are using people’s presence at the border as an excuse to search them or question them for reasons unrelated to border security. Journalists aren’t suspected of wrongdoing, but they are talking to people who are of interest of the U.S. government. The government’s conduct here is a direct threat to press freedom.
[Editor’s note: In court documents, the government acknowledged that border agencies may conduct “warrantless or suspicionless border searches of electronic devices when the subject is someone other than the traveler.”]
How do you feel about the ruling?
Isma’il: It’s a good first step, but it’s not over. I expect the government will appeal.
Sophia: We had asked that the court require a warrant based on probable cause to search electronic devices at the border—and the ruling fell short of that. But the court did rule that searches wholly without suspicion violate the Fourth Amendment, and that border agents need reasonable suspicion that someone’s device contains digital contraband.
What does that mean for journalists?
Sophia: The most common form of digital contraband is child pornography, and that has nothing to do with reporters. But the judge did mention classified information. That could be interpreted by the government as an opportunity to target a journalist who has obtained classified information from a confidential source, interdict them at the border and search their device. But it remains to be seen what happens on appeal, and how the government implements any appellate ruling.
The main takeaway is that by raising the level of suspicion the government needs to do a device search, and narrowing the targeted data to “digital contraband,” this ruling has the potential to severely curtail the invasion of privacy. If upheld on appeal, it will protect many travelers within the jurisdiction of the First Circuit.
Should journalists change their behavior at the border based on the ruling?
Sophia: Journalists should continue to take the precautions they have been taking, because nothing is going to change yet.
The judge issued a two-prong judgment. First was the broad declaration that the Fourth Amendment requires border device searches and seizures to be based on reasonable suspicion that the device contains digital contraband. Second, she issued an injunction ordering the government not to search or seize the devices of our 11 plaintiffs unless this rule is met.
Unfortunately, there’s no injunction for non-parties in the case. The government has said they will not interpret the declaration as requiring them to change their policies for travelers at ports of entry across the U.S. But if the First Circuit affirms the ruling on appeal, that will be the constitutional standard for all ports of entry within the jurisdiction of the First Circuit. As different circuits weigh in, the issue may eventually be ripe for Supreme Court review. There’s no doubt this is a historic opinion. And we hope it’s persuasive for other courts.
This ruling has gotten a lot of attention. Is there anything missing from the conversation?
Isma’il: I think we need to be looking out for freelancers and stringers especially. This problem is compounded when a journalist does not have the institutional backing of a publication and they’re caught up at the border. We need to be examining how media outlets react, or not, and how they back up the freelancers they work with—that’s another story in itself.