Austin (KXAN) — This weekend, a story about one journalist’s experience at Austin Bergstrom International Airport was published and shared across social media. In an article for The Intercept, reporter Seth Harp detailed his experience on May 13 being detained by U.S. Customs and Border Protection at ABIA. He also reported on the lack of privacy that came with the process.
This all comes as the number of electronic device searches from CBP at U.S. borders continues to increase. CBP reports the number of international arrivals and departures where electronic device searches happened was 19,051 in the 2016 Fiscal Year and 30,200 in the 2017 Fiscal Year. According to reporting from the Associated Press, that number was 33,295 in the 2018 Fiscal Year.
When it comes to inspections, CBP maintains that years of legal precedent grant it the authority to conduct these warrantless searches.
“As a constitutional matter, border search authority is premised in part on a reduced expectation of privacy associated with international travel,” reads a 2018 CBP directive on the search of electronic devices.
May 13, 2019
According to Harp’s account for The Intercept, he was returning to the U.S. from Mexico City and going through immigration at ABIA. This was not something new for Harp, whose reporting has taken him to international destinations many times, including lots of trips across the U.S.-Mexico border. Harp was born and raised in Austin.
Harp recalled that while handing over his passport to a CBP officer at ABIA, he told the officer he had been in Mexico for a week and that he is a journalist who travels to Mexico often.
“He wanted to know the substance of the story I was currently working on, which didn’t sit right with me,” Harp wrote in The Inercept.“I tried to skirt the question, but he came back to it, pointedly.”
Harp recalled being tired and hungry in a way that likely impacted how he responded. He recalled “muttering” something to the officer about not being obligated to say what he was reporting on.
Soon the officer was taking him to a “secondary screening” area for a CBP inspection. He was told that he was not under arrest or suspected of any crime. CBP also told him that his citizenship was not in question, but Harp recalls being told that if he didn’t answer the questions asked by the officer he wouldn’t be allowed back into the United States.
Harp said that all of his suitcase was searched (including his toiletries). He said that officers read every page of his 2019 journal and performed a warrantless search of his phone and laptop.
Harp acknowledged he had some “flippancy” at first with how he responded to the CBP officers, first telling them he was investigating guacamole. But he eventually he revealed to the officers he was working on a story for Rolling Stone about machine guns sold to a Mexican cartel.
Harp recalled telling the officers he felt an obligation to call an attorney before they carried out he searches. An officer told him that he could not call an attorney as he was not under arrest.
Harp explained that the officers were keeping him in the screening area, he attempted to leave the zone and “got yelled at,” he tried to call a lawyer and the officer stopped him, holding onto his phone from then on.
Harp gave over the password to his iPhone, then one officer went through everything on his phone — from photos, to calls, to messages — and another officer looked over everything on his laptop — from financial spreadsheets to property records.
He was questioned by the officers on his work and his political opinions.
After around four hours, he was told he was free to go. Harp acknowledged that he may have had an even more difficult time with this process had he not been a white male.
KXAN reached out to ABIA about Harp’s account of what happened. It couldn’t comment and deferred to CBP.
CBP said that due to the Privacy Act, it could not provide “specific information regarding an individual traveler.” However, it did note that, “in general, when CBP encounters a passenger who refuses to respond to CBP officer questions, that passenger is referred for additional processing. “
The agency emphasized that all travelers to the U.S. are subject to inspection, search, and detention by CBP, as is all baggage and merchandise headed to the U.S. CBP noted that these inspections can be performed on things such as computers, disk drives, cameras, phones, and many other devices. Additionally, if you don’t assist CBP or provide information, your electronic device may be seized or detained.
In a statement, CBP explained the rationale for these inspections was because their officers must determine the identity and citizenship of anyone trying to enter the U.S. so that they can decide whether to allow non-citizens in the country and so that they can deter possible terrorists.
“Searches of electronic devices at the border are often integral to a determination of an individual’s intentions upon entry and provide additional information relevant to admissibility determinations under immigration laws,” the CBP statement said, continuing on to explain that information obtained from these searches has led to the discovery of evidence and arrests.
CBP explained that over the past few years it has shifted its actions to “align with current threat information, which is based on intelligence.” The agency has trained additional officers to carry out these device searches.
“As the threat landscape changes, so does CBP,” the statement said. The agency’s language in recent statements about electronic device searches insists that it aims to use their border search authority “judiciously” and in a way that “preserves the public trust.” In January of 2018, CBP updated its directive for border searches of electronic devices.
The agency says that it examines less than one-hundredth of one percent of travelers arriving to the United States. It noted that if passengers feel they were unfairly detained by CBP, they can reach out to the DHS Traveler Redress Inquiry Program .
Attorneys following stories of CBP searches
Sophia Cope of the Electronic Frontier Foundation (EFF), a civil liberties nonprofit focused on free speech and privacy, explained that her organization has been following CBP’s use of warrantless searches at the border for decades. In fact, EFF joined the American Civil Liberties Union on a lawsuit filed in 2017 in federal district court challenging the constitutionality of these warrantless searches.
Cope explained the lawsuit has eleven clients — 10 are US citizens and one is a green card holder. Since April, EFF has been in summary judgment briefings for the case and they plan to have a hearing on summary judgment July 18. Cope said the judge in the case is expected to make a decision in the summer or the fall.
“The border search authority that CBP and ICE generally have, and reasonably have under the Fourth Amendment in terms of being able to search people’s vehicles or luggage without a warrant or any kind of suspicion of wrongdoing at all, it’s not questioned in general,” Cope explained. “But when you get to looking at people’s devices, which carry our entire lives, it really feels like it’s a huge and unprecedented invasion of privacy.”
One hurdle in parsing out the information from these searches, Cope explained, is that CBP doesn’t keep statistics on what types of people are having their devices searched.
Cope said that EFF is hoping U.S. Congress will step in and create legislation to require a warrant for these device searches at the border.
Harp actually interviewed Cope for his story, but she said she didn’t realize the big picture of what had happened to him until the story was published.
“While what happened to him is horrible, unfortunately, this kind of abuse of power has been happening toward journalists for several years,” she said, noting that other journalists have had their laptops, devices and notes scoured by CBP.
“There’s been an increase over the past 10-plus years, and part of that increase definitely happened under the Trump administration,” Cope said.
She explained that in the early 2000s there were some cases related to searches of laptop computers.
Cope said when the iPhone came onto the market in 2007, there was a “sharp spike” in the adoption of smartphones.
“Kind of at the same time, you saw an increase in reporting of device searches by border agents,” she said
Since that time, she noted that device searches have skyrocketted.
For those who are worried about the security of their information as they cross U.S. borders, Cope encourages them to minimize the data on their devices before they travel and to protect their information with strong passwords and encryption.
However, she noted that while those detained for CBP screenings can decline to give up their passwords, they then risk having CBP seize their devices. EFF has compiled a list of tips for travelers to protect their privacy here.
Other attorneys have noticed the increase in these searches as well. Austin-based immigration attorney Kate Lincoln-Goldfinch explained that during her decade of work in the immigration realm, she’s seen a lot of people put into CBP’s secondary screening, but most of those people have been immigrants, tourists or students.
“What’s new is that this same experience that I’ve heard about so many times before is now being used against U.S. citizens who might be activists, who might be representing migrants in Mexico or who might be journalists who are writing about policies that perhaps this administration is not in support of,” Lincoln-Goldfinch said.
She believes that she began hearing more accounts from activists, journalists and lawyers who are U.S. citizens being put in secondary inspection in 2018, right around the time that the Department of Justice began using a “zero-tolerance policy” toward crossing the border illegally.
“They match all the reports that I’ve heard over the years,” Lincoln-Goldfinch said. “They are put into this secondary inspection cell, for a lack of a better word, and put through what is like an interrogation, and their belongings are searched, their device is searched, they are not allowed access to an attorney, they are not given any information. They are treated very poorly.”
She said these recent reports have given her and her colleagues in the legal realm pause as they think about international travel.
“This is an incredibly concerning abuse of power to me,” she said. “Journalists need to be protected, attorneys need to be protected, as does their attorney-client privilege, and the fact that I as an attorney might have my cell phone or my laptop taken away or my and my client’s information could be reviewed is a complete abuse of power and a violation of my privacy and my client’s privacy.”