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Journalists are under threat at border zones

Documentary filmmaker Jeremy Dupin was returning to the US from Haiti to spend Christmas with his daughter when he was detained and searched at the border. Reporter and editor Seth Harp was on his way home to Austin from reporting on Mexican cartels when it happened to him. Freelance journalist Isma’il Kushkush was flying back to his place in New York. Independent filmmaker Akram Shibly was on the way home from Canada. Ernest M. was traveling from Paris to the London Book Fair. Around the world, authorities at ports of entry are granted latitude to search and detain incoming travelers, conduct interrogations without the presence of a lawyer, and even make copies of digital information on phones and laptops. These tactics, using laws designed to prevent terrorism, are being deployed against journalists with alarming regularity. 

There were 40,913 electronic-device searches by US Customs and Border Protection (CBP) officers on the eve of the pandemic in the 2019 fiscal year, rising more than fourfold from 8,503 searches in 2015. Law enforcement and intelligence agencies in the US seem “more and more excited about this kind of end-run around the Constitution,” Adam Schwartz, senior staff attorney and assistant director at civil liberties nonprofit the Electronic Frontier Foundation, said, allowing them to “concentrate their firepower at the US border, where the courts unfortunately have given them freer rein,” he said. “These are kinks in the armor” of constitutional freedoms. 

A recent UK case has put the spotlight back on the issue. On Monday, April 17, Ernest M., whose last name we are not using at his request over fears he may be subjected to further harassment, arrived at Paris Gare du Nord and boarded a train to London St Pancras International. When he arrived, at 7:30pm, he was approached by two plainclothes police officers and taken for questioning. Ernest, twenty-eight, is a foreign-rights manager at La Fabrique Editions. 

The French publishing house is the sister of Verso Books and publishes work by social critics including Silvia Federici, Henri Lefebvre, and Tariq Ali. In the interrogation room British officers reportedly asked Ernest his opinion on French president Emmanuel Macron. They asked about Macron’s proposed plan to up France’s retirement age. They asked if he’d name anti-government authors in his publisher’s catalogue. They asked him for the passcodes to unlock his laptop and phone. Ernest refused, so, after six hours of questioning—around 1:30am—he had his devices confiscated, was escorted to the British Transport Police station on Brewery Road, and was arrested.

He was detained under Section 7 of the Terrorism Act 2000, passed by Tony Blair’s government. This gives police the power to examine and detain anyone at a port, airport, or international train station for up to six hours—without needing a reasonable suspicion they have done anything unlawful—to investigate potential involvement with the “commission, preparation, or instigation of acts of terrorism.” Academics have argued that the act, with its broad definition of terrorism, places an enormous amount of faith in police not to abuse their powers. 

News organizations were quick to denounce Ernest’s detainment. A London Times headline said it was a “‘Scandalous abuse’ of anti-terror law as French publisher questioned.” The Washington Post, ABC News, and The Nation were among the American outlets that covered the story. The National Union of Journalists and PEN International, a writers association, condemned the arrest, and quickfire protests were held at the British Embassy in Paris and near the French Institute in London. “I think that they have burned their fingers on this case, because they were not expecting the overwhelming media response,” Sebastian Budgen, a senior editor at Verso, told me. 

This is not the first time La Fabrique Editions has been targeted by authorities. In France, the publishing of the 2007 anarchist book The Coming Insurrection led to an anti-terrorism case against nine people accused of terrorist activity around sabotaging French railways. And it’s not the first time British use of Section 7 of the Terrorism Act 2000 has grabbed headlines: in 2013, David Miranda, the partner of Snowden Files journalist Glenn Greenwald, was detained at Heathrow airport and had his electronics confiscated. (Miranda launched a successful legal challenge.)

Budgen told CJR that Ernest’s interrogators were mostly friendly. They offered him Hobnob biscuits. But he also told reporters “one of the police officers boasted to Ernest that Britain is the only country where they can not only access your phone and computer but download all the contents” and threatened he “would never be able to travel again because he’d be labeled a terrorist” if he didn’t comply. The incident is part of a wider “slide toward a surveillance society,” Jean Morisot, one of the publishing house’s owners, told the Telegraph. Ernest has been summoned to return to the UK on May 16 to collect his laptop and phone.

In the US, too, officials can gain access—without a warrant—to all information on a laptop or phone and share it with other federal agencies. (US law enforcement cannot scour phones even after an arrest. They can at a port of entry.) For journalists, this jeopardizes confidential sources and leaked information. According to a 2017 legal filing, classified information is among the items considered contraband by CBP during searches, imperiling journalists who work with whistleblowers to expose wrongdoing. The US-Mexico border has been subject to particular scrutiny, The Intercept has reported.

On May 13, 2019, Seth Harp was reporting a magazine story for Rolling Stone on a ring smuggling guns from Texas to Mexico to help arm cartels. Returning to Austin, he was stopped by CBP and spent hours being interrogated—about what stories he was working on, his political opinions, if he’d ever had contact with the Taliban—while officers combed through his devices and personal diary. He was frustrated, irritable, and restless at first. “Get back,” an officer ordered Harp three times during his secondary screening. “I don’t know if you’re going for my gun.” For Harp, the subtext was clear: “They as police officers are gonna respond with possibly deadly force if you don’t sit still.”

Border interrogations and digital searches of journalists are about more than just gathering information. They signal: we can find out what you’re working on, who you’re talking to, what information you have. The Committee to Protect Journalists (CPJ) has said that a ”fundamental [legal] change is necessary to protect the First and Fourth Amendments at the border, and for no group is this more urgent than the press.”

What can journalists do to protect themselves at the border? The CPJ’s surveillance self-defense tips include backing up information to an external hard drive or the cloud; deleting cloud or messaging apps before traveling; using passcodes and pins, rather than biometric unlocking, under which access could be gained by force; clarifying with border guards whether they are asking you to do something or if it is an order; documenting the names and departments of the people who search you; and remaining polite and respectful of officials. Unless the law changes, it’s all anyone can do. 

Jem Bartholomew is a Reporting Fellow at the Tow Center for Digital Journalism. Jem’s work has been featured in the Wall Street Journal, The Guardian, The Economist, Time, New York magazine, and others. In 2019, he was named Best Newcomer in the State Street press awards.

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