I’m a Journalist but I Didn’t Fully Realize the Terrible Power of U.S. Border Officials Until They Violated My Rights and Privacy
By Seth Harp
June 23/24, 2019 “Information Clearing House” –
I should have kept my mouth shut about the guacamole; that made things worse for me. Otherwise, what I’m about to describe could happen to any American who travels internationally. It happened 33,295 times last year.
My work as a journalist has taken me to many foreign countries, including frequent trips to Mexico. On May 13, I was returning to the U.S. from Mexico City when, passing through immigration at the Austin airport, I was pulled out of line for “secondary screening,” a quasi-custodial law enforcement process that takes place in the Homeland Security zone of the airport.
Austin is where I was born and raised, and I usually get waved through immigration after one or two questions. I’m also a white man; more on that later. This time, when my turn came to show my passport, the U.S. Customs and Border Protection officer was more aggressive than usual in his questioning. I told him I’d been in Mexico for seven days for work, that I was a journalist, and that I travel to Mexico often, as he could see from my passport. That wasn’t enough for him, though. He wanted to know the substance of the story I was currently working on, which didn’t sit right with me. I tried to skirt the question, but he came back to it, pointedly.
I was going on three hours of sleep, and I hadn’t had anything to eat in the last 12 hours besides some popcorn and peanuts and a Monster energy drink. Had my blood sugar been higher, I might have cheerfully told him. Instead, I muttered something about not having a legal obligation, under the circumstances, to disclose the contents of my reporting.
The agent, whose name was Moncivias, said we would see about that. He asked me to follow him into the secondary screening area.
“Oh, come on, man,” I said, checking the time on my phone. It was just after noon. “This is going to be a huge waste of time.”
“I’m here all day,” Moncivias said. He might have been 30 years old, clean cut, with dark hair and light skin. He and I were close enough in age that there was definitely some male primate posturing going on between us. At one point, I told him that I had been in the Army. “Thank you for your service,” he retorted.
In retrospect, I was naive about the kind of agency CBP has become in the Trump era. Though I’ve reported several magazine stories in Mexico, none have been about immigration. Of course, I knew these were the guys putting kids in cages, separating refugee children from their parents, and that Trump’s whole shtick is vilifying immigrants, leading to many sad and ugly scenes at the border, including the farcical deployment of U.S. troops. But I complacently assumed that wouldn’t affect me directly, least of all in Austin. Later, I did remember reading a report in February about CBP targeting journalists, activists, and lawyers for scrutiny at ports of entry south of California, but I had never had a problem before, not in a lifetime of crossing the Texas-Mexico border scores of times on foot, by car, by plane, in a canoe, even swimming. This was the first time CBP had ever pulled me aside.
When asked to comment on specific details in this story, a CBP spokesperson responded with a canned statement replete with the sort of pseudo-military terminology that betrays the agency’s sense of itself not as a civil customs service but as some kind of counterterrorism strike force. “CBP has adapted and adjusted our actions to align with current threat information, which is based on intelligence,” the statement reads in part. “As the threat landscape changes, so does CBP.” The agency declined to put me in touch with Moncivias and the other officers named in this account or to make an official available for an interview, but a CBP source mentioned that the “port director” had reviewed “the tape” of the encounter. I found that very interesting, because I had specifically asked Moncivias and the other officers if I was being videotaped or recorded, and they had categorically denied it.
We passed through a detention area harshly illuminated by fluorescent lights where armed CBP officers in dark uniforms outnumbered the few tired-looking travelers. The officers all had Homeland Security patches on their shoulders and pistols on their belts. Moncivias sat me down in a side room with a desk, two chairs, and a microscope on a filing cabinet. He left the door open.
A bespectacled supervisor named Lopez made an appearance. In a polite back-and-forth, I learned that I was not under arrest or suspected of any crime, and my citizenship was not in doubt, but if I didn’t answer the question asked by the “incident officer,” I wouldn’t be allowed into the United States. He handed me some brochures and left the room.
Moncivias was joined by an Anglo officer named Pomeroy, who had a shaved head and looked a little older. They stared at me expectantly.
“Fine,” I said. “For the last six months, I’ve been doing an investigative journalism project to determine which restaurant has the best guacamole in all of Mexico.”
Moncivias didn’t miss a beat. “And what restaurant is that?”
“El Parnita, on Avenida Yucatán in Mexico City,” I told him, truthfully.
The flippancy would cost me. From then on out, the officers made it clear that I was in for a long delay. When I saw how mad they were, I lost interest in the principle of the thing. In reality, I didn’t care if they knew what the story was about. The draft was done, and my editors had a copy. All I cared about was getting home to a cup of coffee, a sandwich, a shower, and my bed. In an effort to smooth things over, I said that if they really had to know, I was finishing up a story for Rolling Stone about some guys from Texas and Arizona who sold helicopter machine guns to a Mexican cartel and that I’d been in Mexico City to interview a government official who, for understandable reasons, didn’t want his name bandied about. I apologized for my grouchiness, blaming it on the stress of travel.
Cooperation didn’t earn me any leniency. Next up was a thorough search of my suitcase, down to unscrewing the tops of my toiletries. That much I expected. But then a third officer, whose name was Villarreal, carefully read every page of my 2019 journal, including copious notes to self on work, relationships, friends, family, and all sorts of private reflections I had happened to write down. I told him, “Sir, I know there’s nothing I can do to stop you, but I want to tell you, as one human being to another, that you’re invading my privacy right now, and I don’t appreciate it.” Villarreal acknowledged the statement and went back to reading.
That was just the beginning. The real abuse of power was a warrantless search of my phone and laptop. This is the part that affects everyone, not just reporters and people who keep journals.
In general, law enforcement agents have to get a warrant to search your electronic devices. That’s the gist of the 2014 Supreme Court case Riley v. California. But the Riley ruling only applies when the police arrest you. The Supreme Court has not yet decided whether the same protections apply to American citizens reentering the United States from abroad, and federal appeals courts have issued contradictory opinions. In the absence of a controlling legal authority, CBP goes by its own rules, namely CBP Directive No. 3340-049A, pursuant to which CBP can search any person’s device, at any time, for any reason, or for no reason at all. If you refuse to give up your password, CBP’s policy is to seize the device. The agency may use “external equipment” to crack the passcode, “not merely to gain access to the device, but to review, copy, and/or analyze its contents,” according to the directive. CBP can look for any kind of evidence, any kind of information, and can share what it finds with any other federal agency, so long as doing so is “consistent with applicable law and policy.”
I had my doubts as to whether they could actually crack my iPhone and MacBook, but I didn’t doubt that they would be happy to confiscate them. So I decided to take another tack: I told the officers I had nothing to hide, but I felt I had a professional obligation to call an attorney for further advice. Pomeroy said I could not because I wasn’t under arrest; I just wasn’t allowed to enter the United States. I wasn’t allowed to leave the Homeland Security zone, either. I know because I tried to sort of wander out a couple of times and got yelled at. When I actually tried to call a lawyer friend of mine in Austin, Pomeroy stopped me. They held onto my phone from then out.
Sophia Cope, an attorney with the Electronic Frontier Foundation, which has sued CBP over its warrantless device searches, told me that the agency “has for sure said no” as to whether there is a right to counsel during secondary screening. “They’ve been pretty consistent. You don’t get a lawyer. A lot of people have tried to push back, particularly after the Muslim ban. People were like, ‘I have a green card, and you’re putting me back on a plane to Iran. I need a lawyer to come down to the airport.’”
CBP has been doing warrantless device searches since the advent of the modern smartphone, Cope said, but the practice has increased by some 300 percent since Trump took office. In late 2017, EFF teamed up with the American Civil Liberties Union and filed a case alleging the unconstitutionality of the administration’s blitz of warrantless searches. Anecdotally, CBP appears to be targeting typical Trumpian scapegoats, including Muslims, Latinos, and journalists, but anyone reentering the United States can be subject to these searches. The 11 plaintiffs in the EFF and ACLU case are a computer programmer, a filmmaker, a graduate student, a nursing student, a limousine driver, a businessman, an engineer, a professor, an artist, and two journalists. All are U.S. citizens or legal permanent residents who had experiences similar to mine.
“The secondary inspection environment is inherently coercive,” the complaint says. “Travelers are not free to exit those areas until officers permit them to leave.” Travelers are usually exhausted, sometimes ill, and may be under pressure to catch a connecting flight, anxious to get home to kids, or needed at work. Forcing travelers who are not suspected of any wrongdoing to cough up their passwords, on pain of having their devices seized, violates the Fourth Amendment right to be free of unreasonable searches and seizures, the plaintiffs argue, and also infringes the First Amendment right to free expression and association by means of government intimidation and surveillance. “Regardless of whether you have embarrassing information on your device,” Cope said, “it’s about personal autonomy and living in a free society and not a police state.”
I didn’t know all of this when I was being held by CBP. When the officers told me they only wanted to check my devices for child pornography, links to terrorism, and so forth, I believed them. I was completely unprepared for the digital ransacking that came next.
After I gave him the password to my iPhone, Moncivias spent three hours reviewing hundreds of photos and videos and emails and calls and texts, including encrypted messages on WhatsApp, Signal, and Telegram. It was the digital equivalent of tossing someone’s house: opening cabinets, pulling out drawers, and overturning furniture in hopes of finding something — anything — illegal. He read my communications with friends, family, and loved ones. He went through my correspondence with colleagues, editors, and sources. He asked about the identities of people who have worked with me in war zones. He also went through my personal photos, which I resented. Consider everything on your phone right now. Nothing on mine was spared.
Pomeroy, meanwhile, searched my laptop. He browsed my emails and my internet history. He looked through financial spreadsheets and property records and business correspondence. He was able to see all the same photos and videos as Moncivias and then some, including photos I thought I had deleted.
At one point, Pomeroy was standing over my laptop on the desk. I couldn’t see the screen, and he had such a puzzled expression on his face that I stood up to see what he was looking at. “Get back,” he said, clapping a hand on his sidearm. “I don’t know if you’re going for my gun.” At another point, Pomeroy had taken my laptop to the desk in the waiting area, and I thought I heard him call for me to come over, so I did. “Stand back from my gun,” he said, when he saw me approaching; it turns out he had been talking to someone else. Three times during the course of the secondary screening, Pomeroy pronounced words to the effect that he was subjectively forming a reasonable belief that I might grab his service weapon.
It was an implicit death threat and a rhetorical move on part of the police that will be familiar to people of color: I’ve got a gun on you, ergo, you’re a threat to me. Speaking of which, I’m certain this whole experience would have been worse had I been black or brown instead of white. And that is to say nothing of migrants and refugees, whose treatment at the hands of CBP on the U.S.-Mexico border is another matter altogether. But it does go to show that you can’t contain a culture of aggression to one part of an armed agency.
I was being physically submissive, keeping my hands visible at all times, not making any sudden moves, but Pomeroy would not let me see the laptop screen. I told him I at least had the right to know what files he was reviewing. “All of them,” he said, giving me a hard stare. “I’m going to look at all of them.”
“Please don’t look at the one called ‘Secret ISIS Confession,’” I said.
There was a South Asian couple detained along with me, a husband and wife with their luggage. Neither of them would have been able to get away with a crack like that. In my case, Pomeroy just determined to proceed even more painfully slowly.
Both he and Moncivias spent the most time on my photos. Admittedly, I had some crazy ones, including footage of combat taken while reporting in Iraq and Syria. Likewise, my phone contained many chat logs with people in the Middle East, and even more with people in Mexico and Colombia. That could make a border agent justifiably curious, but they had made the decision to detain me and give me a hard time well before they saw the images or messages. That I turned out to be a war correspondent just gave them more ammunition to question me.
“They ask a lot of fishing questions,” said Alexandra Ellerbeck of the Committee to Protect Journalists, which has documented dozens of unwarranted interrogations of reporters by CBP in recent years. “There’s an opportunistic element to it. It seems to be targeted towards general intelligence-gathering. They take a broad view of their mandate to ask these questions, and there can be repercussions if you refuse to answer. They’ll hold you for longer, search your devices, or flag you in the future.” She added, “We don’t think this should be happening at all.”
Moncivias, Pomeroy, and Villarreal questioned me for hours on all aspects of my work. They asked about conversations with editors and colleagues. They asked about my political opinions. Moncivias wanted to know how I felt about Trump trying to pull troops from Syria. He asked if I’d had contact with the Taliban there, and I had to explain that the Taliban don’t operate in Syria. It was clear that they weren’t after anything in particular; their questions were completely scattershot. This wasn’t a continuous interrogation, either. They were wandering in and out of the room, leaving me alone for long periods of time. Interestingly, they didn’t ask me anything about CBP itself. I had told them my current story was about gunrunning, but they didn’t think to ask if I’d done any reporting on their employer, which I had. In fact, my laptop contained hard-won documents on CBP, but I didn’t see the officers reading them.
I did see them copy my laptop’s serial number and write down three or four numbers and alphanumeric sequences found deep in my phone’s settings. The only specifier I halfway understood was the phone’s IMEI number, which can be used to track its physical location. Even if I get rid of the phone, I could be on some accursed watchlist, or somehow electronically tagged, for the rest of my life. Even if it’s benign, like those devices scientists stick whales with, I experience it as an indignity, and you probably would too. They didn’t handcuff me, but the officers otherwise acted as if I were under arrest in a police station, though I had done nothing wrong and they had no reason to suspect me of anything. They frequently took my devices out of the room for long periods of time. When I asked if they had backed up the devices or copied files, they denied it, which I found hard to believe. “You didn’t stick a thumb drive in there?” I asked Pomeroy, who was walking around carrying my laptop. He pretended not to hear.
It was around 4 p.m. when Moncivias finally finished up and informed me, anticlimactically, that I was free to go. I couldn’t wait to get outside because the detention area was freezing. No wonder Spanish-speaking migrants call CBP detention la hielera — the icebox. I took my phone and laptop and silently packed up my luggage, which still lay disemboweled on the desk, underwear and all. Pomeroy was gone by this time.
As I was walking out, I said to Moncivias and Villarreal, “It’s funny, of all the countries I’ve been to, the border guards have never treated me worse than here, in the one country I’m a citizen of, in the town where I was born.”
“Welcome back to the USA,” Moncivias said.
This article was originally published by “The Intercept” –
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Photo credit: http://www.unsplash.com/@mkozubphoto