Defending First Amendment Freedoms
Part 1: Freedom of the Press
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” [emphasis ours]
Early last month we learned that journalists who covered the migrant caravan that approached the US border in late 2018, seven Americans among them, have since repeatedly been singled out for unusual scrutiny by the Border Patrol at the US-Mexico border. On March 6, NBC 7 of San Diego revealed the Border Patrol’s intelligence gathering behind extra interviews, demands to examine laptops and phones, and even instances in which two photojournalists and an attorney were denied entry to Mexico. (For that televised report, see https://www.nbcsandiego.com/investigations/Source-Leaked-Documents-Show-the-US-Government-Tracking-Journalists-and-Advocates-Through-a-Secret-Database-506783231.html.) The US government has been collecting intelligence on Americans who accompanied the caravan as journalists, attorneys, witnesses, social media influencers, and activists. Screenshots of that database of “Suspected Organizers, Coordinators, Instigators, and Media,” supplied by an anonymous source in the Department of Homeland Security, show that alerts were placed on several journalists’ passports, triggering the extra scrutiny they encountered. (See screenshots at https://www.nbcsandiego.com/multimedia/PHOTOS-Leaked-Documents-to-NBC-7-Investigates-506782041.html.)
Some journalists felt that Border Patrol agents were attempting to use them and their devices to glean intelligence on the caravan, jeopardizing confidential sources and their rights as journalists to do their jobs. Phones and laptops have been requested, along with the passwords needed to inspect their contents. In fact, there have been complaints from other Americans about similar warrantless searches going back as far as 2011, and not just those leveled by journalists and others traveling with the migrant caravan. (See https://www.nytimes.com/2017/12/22/us/politics/us-border-privacy-phone-searches.html.)
But laws that enable warrantless searches for Homeland Security purposes can collide head on with the work of a free press, as journalists must now resort to handling the security of their data at the US-Mexico border just as they would handle it in hostile nations, and they must plan on the possibility that they will be detained for lengthy interviews or even denied access.
In fact, it was the very fact that they were documenting the caravan’s arrival when violence broke out at the border in San Diego that resulted in alerts being placed on their passports. (See the 4:20 p.m. update in the NBC 7 article: https://www.nbcsandiego.com/investigations/Source-Leaked-Documents-Show-the-US-Government-Tracking-Journalists-and-Advocates-Through-a-Secret-Database-506783231.html.)
But, according to one Homeland Security source, the dossiers created on journalists and others were, in fact, illegal. “We are a criminal investigation agency; we’re not an intelligence agency. We can’t create dossiers on people, and they’re creating dossiers. This is an abuse of the Border Search Authority.” (https://www.nbcsandiego.com/investigations/Source-Leaked-Documents-Show-the-US-Government-Tracking-Journalists-and-Advocates-Through-a-Secret-Database-506783231.html) Targeting people according to their presence and their profession also constitutes overreach. To be targeted and tracked and profiled simply because you are in a particular place at a particular time doing your job should not be a situation any member of the press faces. To implement such a practice is effectively to discourage coverage of events at the border altogether. It is intimidation and interference, and Amendment I forbids that practice in the United States of America.
Let’s make this clear: Whatever CPB’s intentions and purposes may have been, the pragmatic effect of its actions amounted to interference in journalists’ ability to do their jobs and without compromising sources. The press cannot rightfully be impeded in its work or subjected to warrantless searches simply for witnessing and reporting. This is, however, what has been happening, though journalists are not alone. (Information security and warrantless searches are sometimes issued for business travelers, too, as one Apple employee learned last fall: https://www.washingtonpost.com/technology/2019/04/03/apple-employee-detained-by-us-customs-agents-after-declining-unlock-phone-laptop.) Details of the experiences of journalists covering the migrant caravan have been reported in several sources. See https://cpj.org/2019/02/several-journalists-say-us-border-agents-questione.php and https://wamu.org/story/19/03/07/u-s-reportedly-compiled-database-of-journalists-working-along-southwest-border/.
After the story broke, CBP responded with a statement (which can be viewed in full at https://www.documentcloud.org/documents/5759650-CBP-Full-Statement.html), noting that “Criminal events, such as the breach of the border wall in San Diego, involving assaults on law enforcement and a risk to public safety, are routinely monitored and investigated by authorities. These activities could result in a more thorough review of those seeking entrance into our country. It is protocol following these incidents to collect evidence that might be needed for future legal actions and to determine if the event was orchestrated. CBP and our law enforcement partners evaluate these incidents, follow all leads garnered from information collected, conduct interviews and investigations, in preparation for, and often to prevent future incidents that could cause further harm to the public, our agents, and our economy.”
According to a report in the Guardian, “Andrew Meehan, CBP’s assistant commissioner of public affairs, said the agency identified individuals who may have information related to incidents where CBP agents were attacked in November and January. ‘CBP does not target journalists for inspection based on their occupation or their reporting,’ Meehan said in a statement.”
The CBP’s mission to investigate, however, cannot overstep its reach to trump the country’s First Amendment right to a free press.
Esha Bhandari, an ACLU staff attorney, quoted in a recent article in the Guardian, sees the practice of targeting journalists among others not only as violating freedom of the press, but as deterring free speech more broadly: “It means that the debate about immigrants’ rights, about the treatment of immigrants, about the treatment of asylum seekers, is going to be suppressed or censored because the people who are speaking out with a voice that’s critical of the government are going to be singled out for harsher treatment or punished.” Advocates for immigrants’ rights also feel this pressure under an administration particularly aggressive about curbing immigration and deporting undocumented immigrants already in the US (https://www.theguardian.com/us-news/2019/mar/20/leaked-database-targeting-journalists-immigration-activists).
The Committee for the Protection of Journalists has tracked warrantless searches and documents regarding the extent to which their overall use has expanded: “CBP figures show that over the past three years the agency has increased the number of electronic device searches from 8,500 in 2015 to more than 30,000 in 2017. This more-than-threefold increase comes as journalists report being concerned about their ability to protect sources and amid growing hostile rhetoric toward the press” https://cpj.org/reports/2018/10/nothing-to-declare-us-border-search-phone-press-freedom-cbp.php.
The CPJ has made a series of recommendations to Congress, to DHS, and to the media, designed to ensure that freedom of the press and the rights of journalists and others are not violated by CBP practices. Those recommendations are laid out in full at the CPJ website: https://cpj.org/reports/2018/10/nothing-to-declare-us-border-press-freedom-recommendations.php.
Highlights of CPJ’s recommendations follow:
- “Pass legislation that would require DHS to obtain a warrant before searching devices at the border, which is essential to protecting the privacy of journalists who are traveling into or out of the United States.
- “Pass legislation that requires DHS to report the number of basic and advanced electronic device searches conducted at the border, along with demographic breakdowns of who these device searches affect, and the number of searches that result in evidence later used in a criminal case. These reporting requirements should include the number of people subject to device searches who object to device searches on the grounds that they are members of the media.
- “The Senate Committee on Homeland Security and Governmental Affairs should hold a hearing to ask detailed questions of DHS about electronic device searches, including their impact on journalists, any guidelines the agency has in place regarding interactions with the media, and the number of device searches conducted pursuant a request by another agency, with statistics from each requesting agency….”
Department of Homeland Security
- “DHS should not use secondary screenings at the border to question journalists for the purpose of intelligence gathering that goes beyond the purpose of facilitating lawful travel entry for that individual.
- “DHS should modify its policy on electronic device searches to require a warrant and probable cause before searching digital information contained on devices. In the case of journalists, it should work with media organizations to establish clear guidelines on when a warrant can be issued to search devices belonging to a member of the media, similar to those established by the Department of Justice.”
- “Newsrooms should ensure that journalists are trained in digital security when crossing the border. They should work with legal counsel and security experts to provide guidance for how journalists should respond to questioning at the border or requests to search their electronic devices.
- “Journalists should take steps to minimize the amount of sensitive information that they are carrying across the U.S. border and ensure that they take appropriate steps to safeguard their digital security and that they are aware of their rights.”
Warrantless searches, especially of journalists who are mere witnesses doing their jobs to document events, are a disturbing trend in the US. Constitutionally guaranteed rights do not preserve themselves. Americans must exercise vigilance and demand accountability from every agency in our government. It is, after all, a free press that affords us the reporting that enables us to hold our government accountable.
The famous words often attributed to Edmund Burke remain a riveting reminder for our times: “The only thing necessary for the triumph of evil is that good men should do nothing.” (See https://quoteinvestigator.com/2010/12/04/good-men-do/.)
To speak out against CBP interference with journalists’ work, call your Senator and your Representative:
To donate to the Committee to Protect Journalists, access this link: https://donate.cpj.org/page/28608/donate/.
Note that on April 11, 2019, Pulitzer Prize winning journalist, Gretchen Morgenson, is the keynote speaker at Cumberland Advisors’ “Financial Markets and the Economy – Financial Literacy Day III” event. Gretchen is a champion of the free press. Pertaining to her Fannie Mae investigative reporting, she cited the secrecy at the Obama White House as yet another sign of a pattern that Margaret Sullivan, the public editor at The Times, has called the administration’s “unprecedented secrecy and attacks on a free press.”
If you’re a proponent of the First Amendment and its importance to our republic, please join us April 11th at the Selby Auditorium of the University of South Florida Sarasota-Manatee.
Update (04/12/2019): Gretchen Morgenson’s keynote address, “Why Financial Literacy Depends on Press Freedom,” and Q&A session from the conference are posted here. Enjoy!
Gretchen Morgenson’s Keynote Address
Gretchen Morgenson’s Q&A with audience
Cumberland Advisors’ “Financial Markets and the Economy – Financial Literacy Day III” event, was held April 11, 2019, at the Selby Auditorium of the University of South Florida Sarasota-Manatee.
The focus was “Financial Markets and the Economy”, featuring:
• The Stock Market
• Health Hunger and Philanthropy
• How the World Looks to Me – A Global Economic Outlook
• A Conversation with Susan Harper, Canada’s Consul Gen in Fla, on Trade/World Affairs
• Keynote by Gretchen Morgenson, Senior Special Writer in the Investigations Unit at The Wall Street Journal and Former Business and Financial Editor for the New York Times.
We welcome and encourage the participation of our friends, colleagues, and clients.
Learn more: https://www.cumber.com/financial-literacy-day/
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