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A growing number of news reports indicate that travelers heading to the US are facing scrutiny at the border, with some subjected to electronic-device searches. US Customs and Border Protection states that such searches aim to identify violations—say, drug trafficking or terrorist activities—and that just 0.01 percent of international travelers will be subjected to them. Still, the new administration has reportedly encouraged officers to “not leave any stone unturned,” as per one immigration lawyer. This has increased anxiety among travelers to the US, particularly visa holders, who have fewer privacy protections at the border. While journalists may carry sensitive information, such as contact information for and communications with protected sources, there are no specific laws preventing border officers from digging through such information during searches. Civil liberties organizations and security researchers, therefore, recommend that travelers familiarize themselves with their rights before traveling and have a plan in place should a border agent ask for their personal devices.
Under the Fourth Amendment, law enforcement typically cannot go through someone’s belongings—including their digital devices—unless they can convince a judge there is sufficient suspicion to justify the search. But there is an exception at the border, where the legal landscape tends to be fuzzy, and Congress grants broad authority to regulate who or what enters. Citizens can refuse to hand over passwords to their phones, but doing so may mean tedious travel delays, and immigration officers may detain the devices anyway. Visa holders are in a riskier position. Refusing to comply with a request to unlock one’s phone can lead to denial of entry altogether. The so-called border search exception has been used to target journalists, such as Jeremy Dupin, a documentary filmmaker and permanent resident, who was detained twice by border agents in 2016 after returning from a reporting trip to Haiti. In a lawsuit filed by the American Civil Liberties Union and the Electronic Frontier Foundation (EFF) on behalf of Dupin and ten other travelers, including several other journalists, Dupin describes how he provided his password to agents because he didn’t know there was an option not to. “With my phone unlocked, agents were able to access some of my most sensitive reporting work, including communications with editors about particular projects and photographs taken while on assignment,” he later wrote. “After extensively questioning me about my work for several hours, agents finally let me go.”
Similar stories are not hard to come by. In 2019, The Intercept documented how journalists covering the so-called migrant caravan faced “coordinated harassment” from US and Mexican authorities. Through a series of interviews, the journalist Ryan Devereaux tells how members of the press were forced to turn over their notes, cameras, and phones while border officers interrogated them for information about activists working with members of the caravan. It was later revealed that the screening efforts were indeed not coincidental. Leaked documents provided to NBC 7 San Diego proved that the US government had created a secret database tracking journalists, activists, and social media influencers associated with the caravan, such that they would be flagged for additional screening at the border upon returning from international travels. (Jon Allsop wrote about this leak for CJR at the time.) It’s difficult to gather exact data on the number of journalists subjected to screening or surveillance efforts, but the nonpartisan US Press Freedom Tracker has documented press freedom violations going back to 2017. The database includes fifty-five contextualized incidents of border stops involving journalists since that time. In one, from 2019, a news editor from Defense One was not given his passport back until he agreed to say that he writes “propaganda.” At Los Angeles International Airport the same year, an officer asked a British journalist if he was “part of the ‘fake news media.’”
Such experiences have prompted press freedom organizations to publish digital security guides for journalists. In 2018, the Committee to Protect Journalists published “Nothing to Declare,” a report addressing challenges journalists face when crossing US borders. More recently, in December of last year, the Freedom of the Press Foundation published a “Journalist’s Digital Security Checklist” to help establish robust digital security practices. The Intercept has also provided tips for travelers seeking to prevent their phone data from being used against them by the government. Some recurring advice: log out of all accounts before reaching a security checkpoint; power off devices completely (some encryption protections are more effective when devices are fully shut down); turn biometric locks off; and replace short passwords with longer, more secure ones. The Freedom of the Press Foundation advises journalists to distinguish between sensitive information, such as interview transcripts—which should be stored offline—and nonsensitive information. For those who feel they are at heightened risk, another option offered by The Intercept is to leave the phone at home entirely and use a temporary SIM while traveling. (For more in-depth information, I recommend reading the EFF’s travel guide.)
The information kept on our phones can be a window into our personal lives, going way beyond the scope of our travels. As such, there have been efforts to challenge the government’s border search exception—specifically its application to digital devices, which is seen by advocates as invasive—but most have stalled while moving through the court system. Even so, one significant exception emerged last year: a federal district court in New York ruled that border agents must obtain a warrant before searching travelers’ electronic devices. The court highlighted the argument that searching cellphones is far more invasive than inspecting physical belongings and recognized that digital searches can chill communication between journalists and their sources.
This ruling applies only to the Eastern District of New York, home to entry points like John F. Kennedy International Airport, one of the busiest airports in the country. For many, it was a victory. Grayson Clary, a staff attorney at the Reporters Committee for Freedom of the Press, told the Knight Institute: “As the court recognized, letting border agents freely rifle through journalists’ work product and communications whenever they cross the border would pose an intolerable risk to press freedom.”
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