In previous columns, we’ve discussed both the origins of the constitution-free zone and how activists have begun to challenge the authority of federal agencies to question and search without suspicion at both the border and at internal Department of Homeland Security (DHS) checkpoints. While there is reason enough for all travelers to be concerned about the potential for prolonged detainment, interrogation, and search of their person, papers, and effects, there is an added degree of concern for those involved in exposing government wrongdoing.
A journey through a “rights free” zone is, on its face, ripe for abuse. Particularly within the last few years, the “border search exemption” has become a convenient tool for government officials to target those whom they consider to be a threat to the national security state.
The Global War on Journalism
This, of course, is not unique to the US border, as the highly publicized case of David Miranda (spouse of The Guardian’s Glenn Greenwald) would illustrate. Miranda, acting as intermediary between Greenwald and fellow journalist and enemy of the state, Laura Poitras, was detained last August at London’s Heathrow Airport for almost nine hours. Citing the Terrorism Act of 2000, authorities seized Miranda’s belongings, including encrypted thumb drives that contained data pertaining to Greenwald’s work on the NSA leaks provided by Edward Snowden.
According to Miranda, at no point was he ever questioned about his potential links to terrorist activities, as the invocation of a “Terrorism Act” would suggest. He was, instead, repeatedly asked questions regarding his spouse’s journalism.
While the story of Miranda’s detainment rightly raised the ire of civil libertarians on this side of the Atlantic, some may not yet realize that his treatment by customs officials would have been far worse had he been traveling into the United States. As former Customs and Border Protection (CBP) employee turned whistleblower, Julia Davis, writes in a recent article, “there is little doubt at this point that special ‘Lookout’ alerts have been created in TECS, NCIC and [the] Automated Targeting System (ATS), red-flagging Glenn Greenwald, Laura Poitras, [and] their significant others . . .”
Indeed, long before Edward Snowden, the NSA leaks, or her work with Glenn Greenwald, Laura Poitras was already the target of harassment at the international border. Since 2006, she has been detained, questioned, and searched — her belongings confiscated and held for weeks — more than 40 times.
As troubling as that sounds, it is, unfortunately, not unusual. Poitras is far from the only journalist whom DHS agents have targeted specifically.
Jacob Appelbaum, a computer security researcher, core member of the Tor project (internet anonymity), and volunteer for Wikileaks, has, since at least 2010, been similarly targeted and hassled at the border.
More recently, in June, Nabim Kobeissi, a Canadian citizen and developer of Cryptocat (an encrypted chat service designed to circumvent government surveillance), was detained and questioned by DHS at the US-Canada border four times within a three week period. According to Nadim, his passport was confiscated after being asked specifically about “which algorithms Cyrptochat used and about its censorship resistance.”
Earlier this month, Sarah Abdurrahman, a producer for On the Media, was detained along with her entire family at the US border in Niagara Falls. Once again, as in the previous cases mentioned, border agents gave no reason — since they don’t feel any need to — the interrogation lasted several hours, and they seized and searched personal property, including electronics.
Still, couldn’t this all be a series of coincidences? Surely, anyone — activists, journalists, or otherwise — could be on the receiving end of such treatment at a “rights free” border crossing.
That is correct: no-one is exempt from such treatment, which should hardly be looked at positively. However, documents recently unearthed through a lawsuit brought on by the ACLU reveal that those who work toward exposing government abuse, either through their journalism or some other capacity, indeed face systematic targeting.
The ACLU filed the federal lawsuit on behalf of David House, a computer programmer and co-founder of the non-profit Bradley Manning Support Network, who worked to raise funds for Manning’s legal defense. In 2010, agents detained House at the border upon returning from a trip to Mexico, and they interrogated him regarding his political affiliations, beliefs, and specifically his association with Manning, Wikileaks, and Jacob Appaulbaum. After he invoked the Fifth Amendment and refused to answer any questions, they seized his laptop, camera, thumb drive, and cellphone and held them for over seven months.
The lawsuit settlement documents (PDF) released by the ACLU reveal the process by which House, as presumably with other individuals under scrutiny, became the target of an alert and flagged for detainment — and they confirm the suspicions raised previously by DHS/CBP whistleblower, Julia Davis. David House’s name was indeed on a “lookout” list in the Traveler Enforcement Compliance System (TECS) database, which then links up with the Advance Passenger Information System. This system sends an automated notification of one’s complete travel itinerary, before his departure, to Homeland Security Investigations (HSI), Immigration and Customs Enforcement (ICE), and CBP.
At that point, all federal agents need to do is wait at the given location, port of entry, airport, or border equivalent, and proceed to seize their target and search his belongings in a way that would otherwise never be authorized by a court or judge.
But, if I Have Nothing to Hide . . .
As described, journalists and activists should be particularly disturbed about the potential for harassment by the government when traveling. However, anyone who believes in freedom of movement, the right to privacy, and private property should be similarly concerned by the direct affront to liberty this poses.
Whether you are an attorney or a doctor traveling with privileged client information, a businessman with proprietary data, or your average US American narcissist with a load of selfies on your phone, your rights to privacy should not be exploited upon crossing an imaginary line.
Clearly, a thorough reexamination of border policy is vitally necessary. This “back door” toward warrantless surveillance is one that needs to be shut permanently should any semblance of a “free society” remain.